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    FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., as statutory successor in interest to Home Wise Insurance Company f/k/a First Home Insurance Company, Inc., Appellant, v. Tammy BERNARD, Appellee.
    No. 1D13-3208.
    District Court of Appeal of Florida, First District.
    May 14, 2014.
    Rehearing Denied June 19, 2014.

      Gigi Rollini of Messer Caparello, P.A., and Mark K. Delegal of Holland & Knight LLP, Tallahassee, for Appellant.
    George A. Vaka and Nancy A. Lauten, Vaka Law Group, P.L., Tampa, for Appel-lee.
   WETHERELL, J.

Florida Insurance Guaranty Association, Inc. (FIGA), appeals the final summary judgment ordering it to pay approximately $237,000 directly to Tammy Bernard for sinkhole loss to her home. FIGA argues that the trial court erred in determining that its liability for this loss was governed by the 2010 definition of “covered claim” in section 631.54(3), Florida Statutes, rather than the more restrictive definition in the 2011 version of the statute. We agree. Accordingly, we reverse the final summary judgment.

Factual and Procedural Background

Bernard’s home was insured under a homeowner’s policy issued by First Home Insurance Company (First Home) on May 28, 2010. The policy covered structural damage to the home caused by sinkhole activity, but limited First Home’s obligation to pay for any necessary subsurface repairs until Bernard entered into a contract for the performance of the repairs. Accordingly, unless and until Bernard entered into a contract for the performance of the subsurface repairs, First Home was only obligated to pay Bernard for what the parties refer to as the cosmetic or above-ground repairs costs.

On November 20, 2010, while the policy was in full force and effect, Bernard discovered damage to the walls and floors of her home. Bernard submitted a claim to First Home in December 2010, and First Home retained an engineering firm to conduct a geotechnical investigation to determine the cause of the damage. The investigation determined that the damage to Bernard’s home was consistent with damage caused by sinkhole activity and recommended subsurface remediation and other repairs. First Home nevertheless denied the claim, and in October 2011, Bernard filed a breach of contract action against First Home’s successor-by-merger, Home-Wise Insurance Company (HomeWise).

On November 18, 2011, a Consent Order was entered by the Leon County Circuit Court adjudicating HomeWise insolvent and appointing the Department of Financial Services as the receiver of HomeWise for purposes of liquidation. The order stayed all pending litigation against Home-Wise, including Bernard’s suit, and also triggered FIGA’s obligations under part II of Chapter 631, Florida Statutes (“the FIGA Act”).

In January 2012, FIGA informed Bernard that it would be handling her sinkhole claim. FIGA subsequently invoked the “neutral evaluation” dispute resolution process in section 627.7074, Florida Statutes, to determine whether the damage to Bernard’s home was caused by sinkhole activity and, if so, what remediation and repairs were necessary. In December 2012, the neutral evaluator determined that sinkhole activity could not be ruled out as a cause for the damage to Bernard’s home and found that the necessary repair costs included approximately $170,000 for subsurface remediation and approximately $57,000 for cosmetic repairs.

While the neutral evaluation process was underway, Bernard filed an amended complaint substituting FIGA for HomeWise as the defendant. The amended complaint alleged that the damage to Bernard’s home was a “covered claim” for purposes of the FIGA Act and that FIGA breached its statutory obligations by not paying the claim. FIGA’s answer denied the allegation that the claim submitted by Bernard was a “covered claim” under the FIGA Act and asserted as an affirmative defense that FIGA was only obligated to make payment “to the eontractor(s) of the policyholder’s choice, not the policyholder.”

In January 2013, FIGA notified the trial court and Bernard that it intended to comply with the recommendation of the neutral evaluator. However, FIGA took the position that it was not obligated to make payment directly to Bernard and that it would only make payment to the contractor selected to perform the repairs recommended by the neutral evaluator.

Shortly thereafter, Bernard filed a motion for partial summary judgment seeking a determination that FIGA was obligated to pay the above-ground repair costs directly to her in accordance with the terms of her insurance policy. The motion did not seek direct payment of the subsurface repair costs, and as Bernard’s counsel candidly acknowledged at oral argument, her insurance policy did not require direct payment of those costs.

The motion argued, among other things, that the 2010 statutory definition of “covered claim” in effect when the policy was issued and when the loss occurred did not prohibit FIGA from making payments directly to her. FIGA filed a response and cross-motion for summary judgment in which it argued that its obligations were not triggered until November 18, 2011, when HomeWise was adjudicated insolvent and that the 2011 definition of “covered claim” in effect at that time prohibits it from making any payment directly to Bernard.

After a hearing, the trial court granted Bernard’s motion and denied FIGA’s cross-motion. The court found that FIGA had accepted coverage of the sinkhole loss and the findings of the neutral evaluator concerning the cost of the necessary repairs and explained that the only remaining issue was whether the 2010 or 2011 statutory definition of “covered claim” applied. The court rejected FIGA’s argument that the 2011 definition applied and instead found “as a matter of law that [Bernard] is entitled to payment of amounts due on a ‘covered claim,’ as defined by Section 631.54(3), Fla. Stat. (2010), and which are due to be paid directly to [Bernard] in accordance with the loss payment provisions of [her] Policy as well as the [FIGA] Act.” The court entered judgment in favor of Bernard for approximately $237,000, which included both the above-ground and subsurface repair costs. This appeal followed.

Analysis

The FIGA Act was enacted by the Legislature in 1970 and was patterned after a Model Act promulgated by the National Association of Insurance Commissioners. See Nat. Ass’n of Ins. Comm’rs, Post-Assessment Prop. & Liab. Ins. Guar. Model Act (1969); see also ch. 70-20, Laws of Fla.; O’Malley v. Fla. Ins. Guar. Ass’n, 257 So.2d 9 (Fla.1971). A purpose of the FIGA Act is to “[p]rovide a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer.” § 631.51(1), Fla. Stat. Thus, “when an insurer becomes insolvent, FIGA becomes obligated to respond to covered claims that arise prior to adjudication of the insurer’s insolvency and within a specified time after insolvency.” Fla. Ins. Guar. Ass’n, Inc. v. Devon Neighborhood Ass’n, 67 So.3d 187, 189 (Fla.2011). However, “the full gamut of a defunct insurance company’s liabilities was not intended to be shifted onto FIGA.” Id. at 190 (quoting Fla. Ins. Guar. Ass’n, Inc. v. Olympus Ass’n, Inc., 34 So.3d 791, 794 (Fla. 4th DCA 2010)); Williams v. Fla. Ins. Guar. Ass’n, Inc., 549 So.2d 253, 254 (Fla. 5th DCA 1989).

The FIGA Act created FIGA in section 631.55, Florida Statutes, and established its powers and duties in section 631.57. The latter statute provides in pertinent part that FIGA “shall [b]e obligated to the extent of the covered claims existing [p]ri- or to adjudication of insolvency and arising within 30 days after the determination of insolvency.” § 651.57(l)(a)l.a., Fla. Stat. (emphasis added). The term “covered claim” is specifically defined in the FIGA Act, and because FIGA is a creature of statute, it is not responsible for claims that do not fall within this statutory definition. Devon Neighborhood Ass’n, 67 So.3d at 190 (“FIGA is strictly a creature of statute. Thus, the statutory language defines the extent of FIGA’s obligations. FIGA is not responsible for claims against an insurer that do not fall within FIGA’s statutory obligations.”) (internal quotes and citations omitted); see also Petty v. Fla. Ins. Guar. Ass’n, Inc., 80 So.3d 313, 317 (Fla.2012) (holding that FIGA was not responsible for paying attorney’s fees under section 627.428(1), Florida Statutes, because such fees were not expressly authorized by the insurance policy issued by the insolvent insurer and, thus, did not fall within the statutory definition of “covered claim”).

The general principles stated above are not in dispute in this case. Indeed, the only issue in this case is whether FIGA’s obligations are governed by the definition of “covered claim” in effect when the insurance policy was executed or when the loss occurred (here, the 2010 definition), or the definition in effect when the insurer was adjudicated insolvent (here, the 2011 definition). This is a pure issue of law, which we consider de novo. See Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001) (“The standard of review governing a trial court’s ruling on a motion for summary judgment posing a pure question of law is de novo.”).

The 2010 definition of “covered claim” provided:

“Covered claim” means an unpaid claim, including one of unearned premiums, which arises out of, and is within the coverage, and not in excess of, the applicable limits of an insurance policy to which this part applies, issued by an insurer, if such insurer becomes an insolvent insurer and the claimant or insured is a resident of this state at the time of the insured event or the property from which the claim arises is permanently located in this state. For entities other than individuals, the residence of a claimant, insured, or policyholder is the state in which the entity’s principal place of business is located at the time of the insured event. “Covered claim” shall not include:
(a) Any amount due ... as subrogation, contribution, indemnification, or otherwise; or
(b) Any claim that would otherwise be a covered claim under this part that has been rejected by any other state guaranty fund ....

§ 631.54(3), Fla. Stat. (2010). The definition was amended effective May 17, 2011, to add a new paragraph (c), which reads:

(c) Any amount payable for a sinkhole loss other than testing deemed appropriate by the association or payable for the actual repair of the loss, except that the association may not pay for attorney’s fees or public adjuster’s fees in connection with a sinkhole loss or pay the policyholder. The association may pay for actual repairs to the property but is not liable for amounts in excess of policy limits.

Ch. 2011-39, § 30, Laws of Fla. (codified at § 631.54(3)(c), Fla. Stat. (2011))(empha-sis added).

The only relevant difference between the 2010 and 2011 definitions for purposes of this case is that the 2011 definition prohibits FIGA from paying the policyholder directly for sinkhole loss, whereas the 2010 definition included no such restriction. Accordingly, if the 2011 definition applies in this case, the trial court erred in ordering FIGA to pay the $237,000 in repair costs directly to Bernard and the final summary judgment must be reversed. If, however, the 2010 definition applies, the judgment must be affirmed because FIGA did not challenge any other aspect of the award to Bernard. See footnote 3.

FIGA contends that the 2011 definition applies because that was the version in effect when its statutory obligations were triggered by the insolvency of HomeWise, and prior to that event, Bernard did not have a cause of action against FIGA for payment of a “covered claim” since such claims are contingent upon the insolvency of the insurer. Bernard responds that the 2010 definition applies because that was the version in effect when she executed the insurance policy and on the date of her covered loss, and there is no indication that the Legislature intended the 2011 amendment to the definition of “covered claim” to apply retroactively. FIGA replies that the 2011 amendment is not being applied retroactively in this ease because Bernard’s cause of action against FIGA did not accrue until HomeWise was adjudi-eated insolvent, which occurred after the effective date of the 2011 amendment.

The parties have not cited, nor has our research located any Florida appellate decision expressly addressing the narrow issue presented in this case. However, this issue has been addressed by courts in other states that adopted the Model Act upon which the FIGA Act was based, and those courts have uniformly held that the definition of “covered claim” in effect when the insurer is adjudicated insolvent is the applicable definition.

For example, in Prejean v. Dixie Lloyds Insurance Co., 660 So.2d 836 (La.1995), the Louisiana Supreme Court held that the Louisiana Insurance Guaranty Association (LIGA) was not obligated to pay court costs because, after the date of accident but before the insurer was declared insolvent, the statutory definition of “covered claim” was amended to exempt LIGA from paying court costs. The court initially determined that the amended definition could not be applied retroactively, but on rehearing, the court agreed with LIGA’s argument that the amended definition was not being applied retroactively because it took effect before the insurer was adjudicated insolvent. Id. at 837. The court explained:

[LIGA] argues that the law in effect on the date of the insurer’s insolvency, rather than the law in effect on the date of the accident, should be employed to determine its liability for court costs.
LIGA asserts that the statute operates prospectively here since [the insurer] was not declared insolvent until May 17, 1993, over two years after the statute became effective. We agree.
The determinative point in time separating prospective from retroactive application of an enactment is the date the “cause of action” accrues. In Louisiana, a cause of action accrues when a party has a right to sue.
Applying these principles, [the insured] acquired the right to sue [the insurer], but not LIGA, on the date of the accident, September 4, 1989. [the insured]’s cause of action against LIGA did not exist until [the insurer] was declared insolvent, on May 17,1993.
Accordingly, we find that LIGA’s obligation to pay court costs is governed by the law in effect on the date that the insurer is declared insolvent, not by the law in effect on the date of the event giving rise to the insurer’s liability.

Id. at 837-38 (citations omitted); accord Duhon v. United Pac. Ins. Co., 978 So.2d 964, 967 (La.Ct.App.2007) (“The applicable law governing claims against LIGA is the law in effect on the date of the insurer’s insolvency. The reason for this is that the claim against LIGA does not accrue until the insurer is declared insolvent.”) (citations omitted).

Similarly, in Agency Budget Corp. v. Washington Insurance Guaranty Ass’n, 93 Wash.2d 416, 610 P.2d 361 (1980), the Washington Supreme Court held that the Washington Insurance Guaranty Association (WIGA) was not obligated to pay claims for unearned premiums because the statutory definition of “covered claim” in effect at the time of the insurer’s insolvency excluded such claims from coverage. The definition was amended after the insolvency to include certain unpaid premiums, but the court held that the amendment did not apply retroactively in that case because “the right to claim unearned premiums is created by the adjudication of insolvency” and “[t]hat same event determines the liability of [WIGA] to pay those claims.” Id. at 364.; see also id. (agreeing with WIGA’s argument that the “precipitating event in this case is ... the adjudication of insolvency”).

Likewise, in Durish v. Channelview Bank, 809 S.W.2d 273, 275 (Tex.Ct.App.1991), a Texas intermediate appellate court held that “[t]he date for determining whether a claim is a covered claim under the [Texas Guaranty Act] is the date of impairment.[] The circumstances of Durish are analogous to this case because there, as here, the trial court granted summary judgment in favor of the insured, the Bank, on its claim that the Texas guaranty association violated its statutory duties by not paying a claim the Bank submitted to its insurer, Union Indemnity, prior to a 1985 statutory amendment eliminating coverage under the Texas Guaranty Act for the claim at issue. Id. at 274-75. On appeal, the Receiver representing the guaranty association argued that the Bank’s claim was subject to the post-1985 version of the Texas Guaranty Act in effect when the insurer was declared an “impaired insurer,” and the Bank argued that its claims against the association were governed by the pre-1985 version of the Act in effect when it made a demand to its insurer for payment of the claim. Id.

The appellate court rejected the Bank’s argument, explaining:

The Bank argues that its demand on Union Indemnity was sufficient to constitute a covered claim that accrued before June 15, 1985, and thus, the savings clause[] preserved the Bank’s claims against the Association under the pre-1985 version of the Act.
We disagree. The date for determining whether a claim is a covered claim under the Act is the date of impairment. Our conclusion is based upon our understanding of the text, the structure of the Act, and the relevant case law. The primary object of the Act is to provide funds in addition to assets of impaired insurers for the protection of the holders of covered claims. Act § 2 (1981). The Act does not purport to cover all circumstances in which insureds attempt to recover claims against insolvent insurers. The Act sets forth several criteria for coverage and carves out numerous exceptions. It is apparent from the definitional section that a prerequisite for any covered claim is that the insurer be impaired:
“Covered claim’’ is an unpaid claim of an insured or third party liability claimant which arises out of and is within the coverage and not in excess of the applicable limits of an insurance policy to which this Act applies, ... if such insurer becomes an “impaired insurer’’ after the effective date of this Act and (a) the third party claimant or liability claimant or insured is a resident of this State at the time of the insured event; or (b) the property from which the claim arises is permanently located in this State.
Act § 5(2) (Supp.1991) (emphasis added).
Section 5(2) is particularly important because the definition of a term in the definitional section of a statute controls the construction of that term wherever it appears in the statute.The Bank argues that the word “becomes” suggests that the legislature anticipated the existence of covered claims before impairment. We reject this explanation. The use of the word “becomes” denotes that the Act does not apply to insurance companies in receivership or conserva-torship before the effective date of the Act. The significant words in this subsection are “if’ and “after.” Unless the insurer becomes an impaired insurer after the effective date, an otherwise eligible claim is not a covered claim within the meaning of the Act.
The only case construing this section holds that an otherwise eligible claim is not a covered claim for the purposes of the Act unless the insurer is impaired. “The plain language of § 5(2) ... limits ‘covered claims’ for unearned premiums to persons who were residents of Texas when the policy of insurance was issued or who are residents at the time the insurance company is found to be an ‘impaired insurer.’” Central Bank v. Harris, 623 S.W.2d 807, 810 (Tex.App.1981, no writ) (emphasis added). See also Louisiana Guar. Ass’n v. Guglielmo, 276 So.2d 720, 726 (La.Ct.App.1973) (decreeing an insurer insolvent as the sole operative factor upon which the Association’s liability attaches); Mississippi Ins. Guar. Ass’n v. Gandy, 289 So.2d 677, 682 (Miss.1973) (controlling factor held to be the insolvency of the insurance company after the effective date of the act, not when the claims arose) (both construing similar statutes).

Id. at 275-76 (footnotes omitted and italics in original). Accord John H. Carney & Assoc. v. Tex. Prop. & Cas. Ins. Guar. Ass’n, 354 S.W.3d 843, 844 n. 1 (Tex.Ct. App.2011) (“[A]ll references to the Guaranty Act are based on the 2006 version of the law, the law in effect when [the insurer] went into receivership.”); Campos v. Tex. Prop. & Cas. Ins. Guar. Ass’n, 282 S.W.3d 226, 228 n. 1 (Tex.Ct.App.2009) (“We apply the Texas Property and Casualty Insurance Guaranty Act in effect on October 2001, when the worker’s compensation carrier became an impaired insurer.”). Moreover, with respect to the Bank’s argument that the date of impairment was irrelevant to the date that its claim accrued against the association, the court explained:

We reject this contention beeause[, under the savings clause in the 1985 legislation,] the claim must have accrued as to the Association before the effective date of the amendment and only claims that were covered claims within the meaning of the statute could accrue against the Association.
As we construe the Act, on June 14, 1985, the Bank had no claim against the Guaranty Fund, but only an expectancy that if the insurer became impaired, then it might have a covered claim against the Fund at that time. On June 15, that expectancy was cut off by the amendment to the Act.

Durish, 809 S.W.2d at 277 (emphasis in original).

Finally, in Brennan v. Kansas Insurance Guaranty Ass’n, 293 Kan. 446, 264 P.3d 102 (2011), the Kansas Supreme Court considered whether the definition of “covered claim,” as amended in 2005, applied where the claim arose in 1999 and the insurer was adjudicated insolvent in 2002. The 2005 definition, unlike the version in effect in 2002, allowed the Kansas Insurance Guaranty Association (KIGA) to offset its liability with amounts paid by a claimant’s other insurance, thereby reducing the amount payable to the claimant. Id. at 108. The court held that the 2005 definition could not be retroactively applied because it abolished the claimant’s vested right under the Act in effect when the insurer was adjudicated insolvent. Id. at 113-14. Of particular relevance to this case, the court observed that the claimant’s “statutory right [against KIGA] arose at the time [the insurer] was declared insolvent,” id. at 114, and that “if [the insurer's insolvency had occurred after the 2005 amendment became law, the offset in controversy here would not present a due process issue ....” Id. at 109.

We find the analysis in these cases persuasive, and consistent with the holdings in these cases, we hold that the statutory definition of “covered claim” in effect at the time the insurer is adjudicated insolvent determines the scope of FIGA’s liability under the FIGA Act. Accordingly, in this case, the 2011 definition applies.

In reaching this conclusion, we did not overlook the Florida Supreme Court’s decision in Devon Neighborhood Association, supra. However, we find Bernard’s reliance on that case to be misplaced.

Devon Neighborhood Association arose out of hurricane damage claims made by a neighborhood association under a 2004 insurance policy. See 67 So.3d at 189. After the insurer became insolvent in April 2006, FIGA became responsible for paying the claims. Id. at 190. FIGA paid the initial claim, but after the neighborhood association submitted supplemental claims, FIGA demanded an appraisal of the loss under the terms of the policy. Id. The neighborhood association objected to the appraisal based upon a 2005 statute that required the insurer to give notice of its right to participate in mediation as a prerequisite to the insured having to participate in the appraisal process. Id. The trial court agreed with the neighborhood association and denied FIGA’s motion to compel the appraisal. Id. at 191. The Fourth District affirmed, rejecting FIGA’s constitutional argument that the 2005 statute could not be retroactively applied to the 2004 policy at issue in that case. Id.

FIGA sought review in the Florida Supreme Court based upon conflict with several decisions concerning the proper test to be used in determining whether a statute can be applied retroactively. Id. at 189 (citing the conflict decisions establishing the Court’s jurisdiction). Thus, the narrow issue presented in Devon Neighborhood Association was whether the Fourth District applied the proper test in determining that the 2005 statute was retroactive. Id. at 189, 193-94. The Court quashed the Fourth District’s decision, “agree[ing] with FIGA ... that the district court misapplied this precedent in analyzing the question of retroactivity based solely on the second prong of the test.” Id. at 194.

Bernard contends that Devon Neighborhood Association supports her argument that the 2010 definition of “covered claim” applies in this case because, in the course of its analysis, the Court cited Menendez v. Progressive Express Insurance Co., 35 So.3d 873 (Fla.2010), for the proposition that “the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.” Devon Neighborhood Association, 67 So.3d at 195 n. 7 (internal quotation omitted). Additionally, Bernard points out that there would have been no reason for the Court to even discuss the issue of retroactivity if claims against FIGA were governed by the statutes in effect at the time of the insurer’s insolvency because the 2005 statute at issue in that case was adopted prior to the adjudication of insolvency in 2006. We are not persuaded by these arguments.

First, the citation to the general rule reaffirmed in Menendez was included in a footnote in the part of the Court’s opinion discussing the second prong of the retro-activity test. That discussion was effectively dicta because the Court ultimately concluded that there was no evidence of legislative intent that the 2005 statute be applied retroactively and, thus, it was unnecessary for the Court to consider whether, under the second prong of the retroac-tivity test, it would be constitutional to apply the 2005 statute in that case. Id. at 197 (“Because we have reached this conclusion under prong one of the two-prong test, we need not address whether retroactive application of the amendments would be constitutional.”).

Second, it appears that both the Fourth District and the Florida Supreme Court simply assumed that the application of the 2005 statute would be retroactive because the case involved a 2004 insurance policy. There is nothing in the courts’ opinions suggesting that either court was asked to consider whether the 2005 statute was being applied prospectively, and not retroactively, because FIGA’s responsibilities were not triggered until 2006 when the insurer was adjudicated insolvent. And, because that issue was not squarely presented, the Florida Supreme Court’s opinion cannot be read to have held — implicitly or otherwise — that the applicable statute in determining the scope of FIGA’s obligations is the statute in effect when the policy was executed rather than the statute in effect when the insurer is adjudicated insolvent. Indeed, such a reading would create a potential conflict between Devon Neighborhood Association and Petty because, in Petty, the Court cited the 2008 definition of “covered claim” in a case involving a 2004 date of loss. See 80 So.3d at 315.

Third, unlike this case, the Court did not need to determine in Devon Neighborhood Association if the claim at issue was a “covered claim” under the FIGA Act because FIGA had already accepted responsibility for the claim. See 67 So.3d at 190. And, having done so, FIGA was deemed to be the insurer to the extent of the covered claims and it could take advantage of the insurer’s rights and defenses under the policy. Indeed, it is noteworthy that the statute at issue in that case — section 627.7016, Florida Statutes — impacted FIGA’s rights under the policy, not its obligations or duties under the FIGA Act.

We also have not overlooked Bernard’s argument that claims against FIGA should be governed by the general rule, most recently reaffirmed by the Florida Supreme Court in Menendez, that “the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.” 35 So.3d at 876. We find that rule inapplicable here because it is derived from cases involving contractual claims under an insurance policy, which are logically, and constitutionally, governed by the law in effect at the time of the contract. See generally Lumbermens Mut. Cas. Co. v. Ceballos, 440 So.2d 612, 613 (Fla. 3d DCA 1983) (explaining that the application of a statute to insurance contracts entered into prior to the date the statute took effect “would constitute a legislative impairment of contract in violation of article I, section 10 of the Florida Constitution”). By contrast, because the FIGA Act exists as a matter of legislative grace and claims against FIGA are statutory claims based upon its alleged failure to meet its obligations under the FIGA Act, the insured has no cause of action against FIGA that would be protected against changes to the FIGA Act until the insurer is adjudicated insolvent. See Durish, 809 S.W.2d at 277 (explaining that, prior to insolvency, an insured only has an “expectancy that ... it might have a covered claim” against the guaranty association if the insurer becomes insolvent, but that expectancy can be “cut off’ by statutory amendments that take effect prior to the insurer being adjudicated insolvent).

Finally, we have not overlooked Bernard’s argument that FIGA’s liability cannot be governed by the definition of “covered claim” in effect at the time the insurer is adjudicated insolvent because section 631.57(l)(a)l.a., Florida Statutes, provides that FIGA is obligated to the extent of “the covered claims existing [pjrior to adjudication of insolvency.” Read literally, this statute appears to provide support for Bernard’s argument because if “covered claims”' can “exist” prior to insolvency, then the scope of such claims logically should be based on the statutory definition in effect at the time of their existence. However, because that interpretation would essentially read the insolvency requirement out of the statutory definition of “covered claim,” we agree with FIGA that the better reading of section 631.57(l)(a)l.a. is that it merely provides a temporal limitation on the claims that FIGA is obligated to pay, but such claims still have to meet the statutory definition of “covered claim” in effect when FIGA’s obligations are triggered by the insurer’s insolvency. See id. (explaining “covered claims” cannot accrue prior to impairment because “a prerequisite for a claim to be a covered claim is that the Commissioner [of Insurance] declare the insurer to be impaired”).

Conclusion

In sum, for the reasons stated above, we hold that the statutory definition of “covered claim” in effect at the time the insurer is adjudicated insolvent determines the scope of FIGA’s liability. Accordingly, we reverse the final summary judgment in this case because the trial court erred in applying the 2010 definition rather than the more restrictive 2011 definition in effect at the time HomeWise was adjudicated insolvent, and we remand for entry of an order granting FIGA’s motion for summary judgment and for any further proceedings that may be necessary.

REVERSED and REMANDED.

ROBERTS and OSTERHAUS, JJ., concur.

      . The policy provided in pertinent part:
      PERILS INSURED AGAINST

      Sinkhole Activity
      We insure for direct physical loss to property ... caused by a “sinkhole loss,” including the costs to:
      a. Stabilize the land and building; and, or
      b. Repair the foundation:
      In accordance with the recommendations of the professional engineer who verifies the presence of a "sinkhole loss” ....

      Sinkhole loss means:
      Structural damage to the building, including the foundation, caused by sinkhole activity. Contents coverage shall apply only if there is structural damage to the building caused by sinkhole activity.

      Loss Settlement

      In the event of sinkhole activity:
      (i)We will limit our payment to the actual cash value of the covered sinkhole loss, not including underpinning or grouting or any other repair technique performed below the existing foundation of the building, until you enter into a contract for the performance of building stabilization or foundation repairs.
      (ii) After you enter into the contract, we will pay the amounts necessary to begin and perform such repairs as the work is performed and expenses are incurred. We shall not require you to advance payment for such repairs.
      (iii) If repair had begun and the professional engineer selected or approved by us determines that repair cannot be completed within the policy limits:
      We must either complete the professional engineer's recommended repair or tender the policy limits to you without a reduction for the repair expenses incurred.
      * * *
      Loss Payment.
      We will adjust all losses with you. We will pay you unless some other person is named in the policy or is legally entitled to receive payment.

      . The trial court explained that the amount of the judgment "represents $69,774.63 in cosmetic repair costs as well as the additional [subsurface] remediation costs outlined in the Neutral Evaluation Report less the applicable policy deducible and statutory FIGA deductible” and that the $69,774.63 in cosmetic repair costs was the amount determined by the neutral evaluator (approximately $57,000) plus "profit, overhead and sales tax.” Neither party has challenged the amounts stated in the judgment.

      . Inexplicably, FIGA did not file a motion for rehearing in the trial court challenging the directive that it pay the subsurface repair costs directly to Bernard even though (1) Bernard did not seek payment of such costs in her motion for partial summary judgment, and (2) Bernard’s policy expressly precluded payment for the subsurface repair costs unless and until she contracted for the performance of the repairs. Cf. State Farm Fla. Ins. Co. v. Phillips, 134 So.3d 505 (Fla. 5th DCA 2014) (reversing order requiring insurer to pay subsurface repair costs because the policy gave the insurer the authority to withhold payment for such costs until the insured contracted for the repairs).

      . The creation of section 631.54(3)(c) was one of a number of provisions in chapter 2011-39 intended to ensure that sinkhole insurance claim proceeds are actually used to remediate the sinkhole damage and repair the property. See ch. 2011-39, § 21, Laws of Fla. (making legislative finding concerning the adverse impact of sinkhole claims on the public health, safety and welfare, including the finding that "many properties remain unrepaired even after loss payments, which reduces the local property tax base and adversely affects the real estate market”); id. at §§ 22-27 (amending various provisions of the Insurance Code pertaining to the investigation and payment of sinkhole claims); see also Fla. S. Comm, on Rules, CS for CS for CS for SB 408 (2011) Staff Analysis, at 9 (Apr. 7, 2011) (available at http://www.flsenate.gov/Session/Bill/2011/ 0408/Analyses/201 ls0408.rc.PDF) (noting that there had been a substantial increase in both the number and cost of sinkhole insurance claims and explaining that representatives of the Florida Office of Insurance Regulation and the insurance industry believed that "a major driving force” for the increase is the fact that "many policyholders are incentivized to file such claims because they can keep the cash proceeds from the claim instead of effectuating repairs to their home or remediating the land”).

      . Prejean v. Dixie Lloyds Ins. Co., 655 So.2d 303 (La.1995).

      . The Texas Guaranty Act uses the term "impairment” rather than “insolvency,” but the terms appear to have the same meaning. Compare § 462.004(5), Tex. Ins. Code (defining "impaired insurer”) with § 631.54(6), Fla. Stat. (defining "insolvent insurer”).

      . The savings clause in the 1985 legislation amending the Texas Guaranty Act provided that “[c]overed claims that accrue before the effective date of this Act are governed by the law as it existed at the time the covered claim accrued ....” Id. at 275 (quoting 1985 Tex. Gen. Laws, ch. 904, § 6, at 3032). However, the court explained that "only claims that were covered claims within the meaning of the statute could accrue against the Association" and that "a prerequisite for a claim to be a covered claim is that the Commissioner [of Insurance] declare the insurer to be impaired.” Id. at 277.

      . See Ulloa v. CMI, Inc., 133 So.3d 914 (Fla.2013) (‘'[I]n interpreting a statute modeled after a uniform law, it is pertinent to resort to the holdings in other jurisdictions where the act is in force.'') (internal quotations omitted)

      . We recognize that the opinion in Petty did not contain any analysis of the applicable version of the statutory definition, but as FIGA argued in its briefs, the Court's citation of the 2008 statute rather than the 2004 statute could be viewed as an implicit holding that the governing statute is not the version in effect on the date of the loss. However, as was the case in Devon Neighborhood Association, we are not persuaded that Petty has any significance to our consideration of the narrow issue in this case because it does not appear that there was any dispute in Petty concerning the applicable statute, either because the issue was not raised or because there was no material difference between the statutory definition in effect on the date of the loss and the definition in effect when the insurer was adjudicated insolvent. The same is true of the other cases relied on by FIGA in its briefs. See Jones v. Fla. Ins. Guar. Ass’n, 908 So.2d 435 (Fla.2005) (citing, without analysis, the 1995 version of FIGA Act in a case involving a May 1994 date of loss and a December 1994 insolvency); Fla. Ins. Guar. Ass'n v. Olympus Ass’n, Inc., 34 So.3d 791 (Fla. 4th DCA 2010) (citing, without analysis, the 2008 version of FIGA Act in a case involving a 2005 policy and date of loss and a 2006 insolvency); Fla. Ins. Guar. Ass’n v. All The Way With Bill Vernay, Inc., 864 So.2d 1126 (Fla. 2d DCA 2003) (citing, without analysis, the 2002 definition of "covered claim” in a case involving an April 2000 date of loss); but see Williams v. Fla. Ins. Guar. Ass’n, 549 So.2d 253 (Fla. 5th DCA 1989) (citing, without analysis, the 1983 version of the FIGA Act in a case involving a 1985 insolvency).

      . We are aware of cases from other states relying on language similar to that in section 631.57(l)(a)l.a., Florida Statutes, to hold that claims arising prior to the effective date of the guaranty act can be "covered claims” because the statutory definition of that term merely "categorize[s] the class or nature of claims covered, and [does] not [] fix the time when claims shall arise as a condition precedent to their falling into the classification of covered claims.” La. Ins. Guar. Ass'n v. Guglielmo, 276 So.2d 720, 726 (La.Ct.App.1973), cert denied, 279 So.2d 690 (La.1973); see also Tenn. Ins. Guar. Ass'n v. Pack, 517 S.W.2d 526, 528 (Tenn.1974); Miss. Ins. Guar. Ass'n v. Gandy, 289 So.2d 677, 682 (Miss.1973); but see Smith v. Ohio Valley Ins. Co., 27 Ohio St.2d 268, 272 N.E.2d 131, 136 (1971) (holding that the Ohio Guaranty Act. does not apply to claims that pre-dated the effective date of the Act because the statutory definition of "covered claim” refers to unpaid claims in the present tense ("which arise”), not the past tense ("which arose”)). However, we find these cases distinguishable because they did not directly address the issue framed by this appeal — l.e., whether the association’s liability is governed by the definition of “covered claim” in effect on the date of the loss or the date the insurer is adjudicated insolvent — and when that issue was addressed in one of these states, the state supreme court expressly held that the guaranty association’s obligation to pay a claim is governed by the "law in effect on the date that the insurer is declared insolvent, not by the law in effect on the date of the event giving rise to the insurer’s liability.” Prejean, 660 So.2d at 837.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Frederick LANE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1814.
    District Court of Appeal of Florida, First District.
    May 16, 2014.
    Frederick Lane, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

LEWIS, C.J., THOMAS and OSTERHAUS, JJ., concur.


author: EVANDER, J.

text:
    David F. BENCIVENGA, Petitioner, v. OSCEOLA COUNTY, Florida, Respondent.
    No. 5D13-3309.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2014.
    Rehearing Denied June 26, 2014.

      David F. Bencivenga, Kissimmee, pro se.
    Frank M. Townsend, Assistant County Attorney, Kissimmee, for Respondent.
   EVANDER, J.

David Bencivenga seeks second-tier cer-tiorari review of a final order entered by the circuit court in its appellate capacity. The underlying proceeding was a code enforcement action concerning a parcel of developed real property owned by Benci-venga. In the original proceeding before the Code Enforcement Board (“CEB”), Osceola County alleged a violation of its ordinances and a violation of the Florida Building Code, stemming from Benciven-ga’s failure to obtain building permits for four structures on the property. Benci-venga did not dispute that the structures were constructed without building permits, but maintained that pursuant to section 604.50, Florida Statutes (2008), the construction of the structures did not require building permits. At the conclusion of the CEB hearing, the Board found in favor of Osceola County. Bencivenga then appealed the CEB order to the circuit court. The circuit court affirmed the order, holding that Bencivenga was afforded procedural due process, the Board’s findings and conclusion did not depart from the essential requirements of law, and the findings and conclusion were based on competent, substantial evidence. Benci-venga now seeks second-tier certiorari review in this court.

Where a party seeks appellate review of an administrative action, the circuit court must determine: (1) whether procedural due process was afforded, (2) whether the essential requirements of the law were observed, and (3) whether the administrative findings and judgment are supported by competent, substantial evidence. City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla.1982). On second-tier certiorari review, the district court of appeal is limited to determining whether the circuit court afforded procedural due process and applied the correct law. Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995). Significantly, this court cannot, as Bencivenga implicitly requests, second-guess the circuit court as to whether the CEB’s decision was supported by competent, substantial evidence.

The standard of review for certiorari in the district court effectively eliminates the substantial competent evidence component.

Haines City, 658 So.2d at 530.

Although we may be sympathetic to some of Bencivenga’s arguments, the limited scope of second-tier certiorari review compels us to deny the petition.

PETITION FOR WRIT OF CERTIO-RARI DENIED.

TORPY, C.J. and LAWSON, JJ., concur.

      . § 604.50 Nonresidential farm buildings.—
      Notwithstanding any other law to the contrary, any nonresidential farm building is exempt from the Florida Building Code and any county or municipal building code. For purposes of this section, the term "nonresidential farm building” means any building or support structure that is used for agricultural purposes, is located on a farm that is not used as a residential dwelling, and is located on land that is an integral part of a farm operation or is classified as agricultural land under s. 193.461. The term "farm” is as defined in s. 823.14.


author: EMAS, J.

text:
    REDWOOD RECOVERY SERVICES, LLC, Appellant, v. ADDLE HILL, INC., Appellee.
    No. 3D13-1424.
    District Court of Appeal of Florida, Third District.
    May 28, 2014.

      Levine Kellogg Lehman Schneider & Grosman and Amanda Star Frazer and Jennifer M. Hill and Stephanie L. Hauser, Miami, for appellant.
    David H. Charlip, Aventura, for appel-lee.
    Before WELLS, EMAS and SCALES, JJ.
   EMAS, J.

Redwood Recovery Services, LLC (“Redwood”) appeals the dismissal of its amended impleader complaint. Because there are issues of material fact which are in direct conflict, we reverse and remand for the trial court to conduct an evidentia-ry hearing.

BACKGROUND

This case began with a lawsuit filed by Redwood against Jeffrey Kirsch and several other entities, including American Residential Equities, LLC (“ARE”). Kirsch is the principal of ARE. ARE’s business involved borrowing money from foreign individuals for the purpose of purchasing troubled first mortgage loans in bulk from banks at deeply discounted prices. ARE formed several different limited liability companies to collect money from its lenders and make the purchases from banks. ARE was then paid a management fee by the LLCs. At some point, ARE, Kirsch, and others breached the promissory note held by Redwood, and Redwood sued.

Following a bench trial, the court entered a final judgment in favor of Redwood against ARE, Kirsch, and the other judgment debtors, jointly and severally, in the amount of $10,522,916. In an effort to collect on its judgment, Redwood filed a motion to implead Addle Hill, Inc. (“Addle Hill”), asserting ARE had transferred all of its assets, employees and rights to Addle Hill. The motion to implead was granted and Redwood filed its amended impleader complaint against Addle Hill, a Delaware corporation with its principal place of business in California.

In its complaint, Redwood alleged the court had both general and specific personal jurisdiction over Addle Hill, because Addle Hill maintains its records in Miami-Dade County, Florida, has employees who perform their duties in Miami-Dade County, Florida, and because it received numerous transfers of assets from ARE during the pendency of the underlying lawsuit. In addition, Redwood alleged, the court had jurisdiction under an alter ego theory, because Addle Hill was a mere instrumentality of ARE, improperly formed to conceal and shield ARE’s assets from creditors, including Redwood.

Addle Hill moved to dismiss the amended impleader complaint for lack of personal jurisdiction. It asserted Addle Hill was “unrelated” to ARE; that ARE was trustee of the assets held by the various LLCs and had no ownership interest in those assets; that ARE had taken no management fees since 2008, was insolvent, and currently existed only in its capacity as trustee, holding title to assets for the benefit of the trust beneficiaries; that Addle Hill does not maintain an office or agency, nor any business records or bank accounts in Florida; that its only contact with Florida are two employees who telecommute from their Florida residences and those residences are not Addle Hill offices; and finally, that there is no jurisdiction under an alter ego theory because Addle Hill is not a shareholder of ARE and because the two are engaged in entirely different businesses.

Attached to its motion to dismiss was a declaration of Kirsch and two affidavits from Addle Hill employees, general counsel Lisette Smyth and CFO William Hirschkowitz. Smyth, who was employed by ARE from 2002 to 2011, averred that she began working for Addle Hill in April 2011 and that she worked from her home in Florida, primarily by telephone and electronic correspondence. She asserted that she had never conducted any business activities for Addle Hill in Florida and telecommuted with Addle Hill personnel in the California office. Hirschkowitz similarly averred that although he worked for Addle Hill from his home in Florida, he had never done business on its behalf in Florida. He asserted that Addle Hill’s books and files were kept in California and that he travelled there several times.

After conducting limited jurisdictional discovery, Redwood responded to Addle Hill’s motion to dismiss, and challenged the statements made by Kirsch, Smyth and Hirschkowitz that Addle Hill never operated or conducted business activities in Florida. In support of its contention, Redwood attached a copy of an Addle Hill lease, dated May 28, 2009, listing a Miami address for the delivery of notices to Addle Hill, and identifying ARE as a guarantor. The guaranty was signed by Kirsch. Redwood also submitted evidence that ARE had paid Addle Hill’s lease payments and other expenses and that the two companies had shared office space in California. Finally, Redwood’s response included excerpts of the deposition testimony of Smyth and Hirschkowitz, wherein they each contradicted certain material statements made in their previous affidavits, and the deposition of another Addle Hill employee, Pam Perrot. Although the copies of the depositions were not attached to the response to the motion to dismiss, they were filed with the court on the same date that Redwood filed its response.

Addle Hill replied to Redwood’s response, asserting the amended impleader complaint should be dismissed for lack of personal jurisdiction because Redwood had failed to prove by affidavit the basis upon which jurisdiction may be obtained. Addle Hill also attempted to explain the alleged inconsistencies between Smyth and Hirschkowitz’s affidavits and deposition testimony.

On February 1, 2013, the trial court entered an order sua sponte dismissing Redwood’s impleader complaint, indicating it had “reviewed the file, the motion, mem-oranda, hearing argument of counsel and being otherwise fully advised ...” and granted Addle Hill’s motion to dismiss because Redwood had failed to file “its supporting affidavit addressing the challenge as to personal jurisdiction.” The order granted Redwood leave to file an amended complaint within ten days. The court later acknowledged, however, that this order inadvertently was not sent to the parties.

Having not received the court’s dismissal order, the parties set a hearing on Addle Hill’s motion to dismiss on March 19, 2013. At the hearing, the court notified the parties of its February 1st dismissal order, but indicated that it would entertain an ore terms motion for rehearing of its dismissal order. After hearing argument from both parties, the trial court requested Redwood file a written motion for rehearing, after which the court would decide whether to vacate its February 1st order. Redwood complied with the court’s order and filed a written motion for rehearing, attaching all of its previously-filed supporting documents, but the rehearing motion was denied without explanation.

Redwood then filed a motion for clarification and reconsideration of the order denying its motion for rehearing, indicating it was unclear whether the trial court considered its evidence, whether Redwood still had leave to file an amended complaint, or whether the court considered the evidence and determined there was no jurisdiction over Addle Hill. The trial court denied the motion for clarification and reconsideration, noting “there is no provision in the Rules of Civil Procedure for another Motion for Rehearing” and “no clarification is needed.” This appeal followed.

ANALYSIS

We review de novo a trial court’s ruling on a motion to dismiss for lack of personal jurisdiction. Wendt v. Horowitz, 822 So.2d 1252 (Fla.2002). Generally, as set forth by the Florida Supreme Court in Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989), the procedure for determining whether a Florida court has personal jurisdiction over a non-resident defendant is as follows:

Initially, the plaintiff may seek to obtain jurisdiction over a nonresident defendant by pleading the basis for service in the language of the statute without pleading the supporting facts. By itself, the filing of a motion to dismiss on grounds of lack of jurisdiction over the person does nothing more than raise the legal sufficiency of the pleadings. A defendant wishing to contest the allegations of the complaint concerning jurisdiction or to raise a contention of minimum contacts must file affidavits in support of his position. The burden is then placed upon the plaintiff to prove by affidavit the basis upon which jurisdiction may be obtained.

If the material facts alleged in the opposing affidavits conflict with one another, the trial court is required to hold an evi-dentiary hearing to resolve the jurisdictional issue, id. at 503, and the appellate court must reverse to allow the trial court to do so. Minchuk v. Reyes, 967 So.2d 407 (Fla. 3d DCA 2007). See also, John Posey Corp. v. R.J.T. Eng’g, Inc., 617 So.2d 441 (Fla. 5th DCA 1993).

The record on appeal does not establish the basis for the trial court’s dismissal of Redwood’s impleader complaint or its basis for denying rehearing. Moreover, the sworn proof submitted by both parties in support of their respective jurisdictional positions is in conflict in material respects, and cannot be reconciled without an evidentiary hearing. Accordingly, we reverse and remand for the trial court to conduct a limited evidentiary hearing to resolve those disputed facts and determine the jurisdictional issue. Vickers v. HBS Collections, LLC, 132 So.3d 1228 (Fla. 3d DCA 2014).

Reversed and remanded.

      . The original order (rendered February 1) dismissed the impleader complaint but gave Redwood leave to amend its complaint within ten days. However, the parties did not even become aware of the existence of that order until March 19, well after that ten days had expired.

      . A plaintiff may prove a basis for long-arm jurisdiction either by affidavit or "other sworn proof,” which includes deposition testimony. Tobacco Merch. Ass’n of U.S. v. Broin, 657 So.2d 939 (Fla. 3d DCA 1995); Hernandez v. Bass Aviation, Inc., 453 So.2d 447 (Fla. 4th DCA 1984).


author: SHEPHERD, C.J.

text:
    Doris McNULTY, Appellant, v. BANKUNITED, Appellee.
    No. 3D13-2895.
    District Court of Appeal of Florida, Third District.
    May 28, 2014.
    Todd L. Wallen, Coral Gables, for appellant.
    Fidelity National Law Group and Michele A. Cavallaro, Fort Lauderdale, for appellee.
    Before SHEPHERD, C.J., and LAGOA and FERNANDEZ, JJ.
   ORDER ON MOTION TO RELINQUISH JURISDICTION

SHEPHERD, C.J.

Appellant, Doris McNulty, has filed a motion for relinquishment of jurisdiction to the trial court in order for Appellant to file a motion for relief pursuant to Florida Rule of Civil Procedure 1.540. We deny the motion.

The presumption in this court, as it is in other district courts of appeal in the state, is that judicial economy is best served by leaving jurisdiction in the appellate court until the issuance of the mandate. See Arzoumanian v. U.S. Bank Nat'l Ass’n, 967 So.2d 1020, 1021 (Fla. 4th DCA 2007): Lurie v. Auto-Owners Ins. Co., 605 So.2d 1023, 1025 (Fla. 1st DCA 1992). Florida Rule of Civil Procedure 9.600(b) authorizes relinquishment of jurisdiction only for “specifically stated matters.” A movant wishing to overcome the presumption against relinquishment and obtain relief must therefore inform the court which “specific matters” it desires to be considered by the lower court. Recognizing that relinquishment of jurisdiction results in delay, we grant motions to relinquish jurisdiction “sparingly and usually for the accomplishment of ministerial matters.” Arzoumanian, 967 So.2d at 1021.

In this case, Appellant seeks relief to retry her case, arguing that if the trial court grants relief, the appeal may be moot. Retrying a case is not a reason for relinquishment, nor is raising issues that might have been raised during the original trial.

Motion denied.


author: WALLIS, J. ORFINGER, J.,

text:
    James J. KELLNER and Patricia R. Bergerson, Appellants, v. Cynthia A. DAVID and Frank David, Appellees.
    Nos. 5D12-2027, 5D12-2116.
    District Court of Appeal of Florida, Fifth District.
    May 30, 2014.
    Rehearing and Rehearing En Banc Denied June 30, 2014.

      Mark D. Tinker and Charles W. Hall of Banker Lopez Gassier, P.A., St. Peters-burg]!, for Appellant, Patricia R. Berger-son.
    Michael C. Clarke, Betsy E. Gallagher and Courtney A. Umberger of Kubicki Draper, P.A., Tampa, for Appellant, James J. Kellner.

      A.Daniel Vazquez and Jack J. Fine of Fine, Farkash & Parlapiano, P.A., Gaines-ville, for Appellees.
   WALLIS, J.

James J. Kellner and Patricia R. Ber-gerson (“Appellants”) appeal the lower court’s final judgment after a jury returned a verdict in favor of Cynthia A. David and Frank David (“Appellees”). Appellants raise three issues: (1) the exclusion of Kellner’s testimony about his measurements at the accident scene; (2) the denial of Appellants’ motions contesting the $420,000 award to Cynthia David (“David”) for loss of future earning capacity; and (3) the admission of testimony about Kellner’s prescription drug use. We affirm the trial court’s decision to exclude Kellner’s testimony regarding the accident scene measurements. We reverse on issue two because the evidence only supports an award of $390,000 for David’s loss of future earning capacity. Finally, because we find Appellants’ argument concerning the prescription drug testimony to be without merit, we affirm the trial court without elaboration on that issue.

On April 30, 2008, David was riding a motorcycle on a highway with a posted speed limit of forty-five miles per hour. Kellner, driving an SUV owned by Berger-son, exited a parking lot by turning left onto the highway, resulting in a collision between David’s motorcycle and Kellner’s SUV. Kellner testified that he did not see David’s motorcycle until immediately before the collision.

Appellees filed a negligence action against Appellants. Frank David also sought damages for loss of consortium. Appellants filed separate answers and affirmative defenses alleging David was comparatively negligent by exceeding the posted speed limit. In depositions of both lay and expert witnesses, the parties spent significant time discussing David’s position and speed leading up to the point of impact.

The trial court set March 4, 2011, as the deadline to disclose all witnesses to be used at trial. Appellees’ February 25, 2011 witness list disclosed Alan D. Stokes as an expert in the field of accident reconstruction. Kellner’s March 2, 2011 witness list named James R. Ipser, Ph.D., as an expert in the field of “Accident Reconstruction/Biomechanical.” The March 2 disclosure also listed Kellner as a witness with the topic of his testimony as “liability and damages.” On March 22, 2011, Kell-ner filed a Notice of Withdrawal of Expert Witness, removing Ipser from his witness list. Appellants did not retain another accident reconstructionist.

On August 30, 2011, Appellees filed a synopsis of witness testimony describing Stokes as “[a]n engineer that viewed the video surveillance tape and calculated [David’s] speed and her opportunity to avoid [Kellner].” The synopsis further disclosed that Stokes would “present a breakdown of the [surveillance] video and an animation of the accident.”

On August 31, 2011, Appellants filed separate witness testimony synopses. Appellants listed neither an accident recon-structionist nor Kellner as witnesses. The synopses provided no discussion of distance measurements or the calculation of David’s speed. Appellants’ exhibit lists, dated August 31, 2011, were similarly devoid of any items referencing distance measurements or speed estimates.

The trial began on Monday, September 12, 2011. Multiple eye-witnesses testified, providing conflicting testimony concerning whether David was speeding pri- or to impact. Additional trial evidence included surveillance camera footage from a business, which captured the scene of the accident in multiple frames. Appel-lees’ expert, Stokes, used accident scene measurements and a detailed analysis of the surveillance video footage to establish David’s speed at the time of the accident. Stokes did not physically measure the accident scene, opting to use computer programs, Google Aerial and Google Earth Pro, for his measurements. Appellants’ cross-examination of Stokes challenged the accuracy of his virtual measurements and corresponding speed calculations.

Appellants called Kellner to challenge Stokes’ measurements, resulting in the following exchange:

Q: If you want to, could you go out today and identify that point [where the motorcycle appears in the 32nd frame of the surveillance video footage] based on the car that is parked there now?
A: Yes, sir.
Q: And this past Sunday at my request did you, in fact, do that?
A: Yes, I did.
Q: And did you also identify the approximate point of the impact between your vehicle and the motorcycle?
THE COURT: You all need to come up here please.
(At sidebar.)
THE COURT: Where are you going with this? It’s not happening. Number one, it was past discovery cut off. It’s been done after discovery cut off. It’s discovery. He’s not an expert. You’re not going there.
(Sidebar ends).
BY [Appellants’ counsel]:
Q: Okay. I don’t want to talk about anything that happened on Sunday.
A: Okay.
Q: So we’re not going to do that.
A: All right.
Q: Can you give me an approximation, based on your best estimate having gone by that location every day virtually, of the distance from where your vehicle was at the time of the accident to the point depicted by the motorcycle right now?
[Appellees’ counsel]: We would object to this question and answer, Your Honor. THE COURT: Sustained.
[Appellants’ counsel]: I don’t know how to cure it. So can we come up?
(At sidebar.)
THE COURT: Was this covered in the deposition, in any deposition that was taken of this witness?
[Appellees’ counsel]: No.
THE COURT: Okay. You’re not going to turn him into any kind of accident reconstructionist.
[Appellants’ counsel]: I’m not going to try to. Distances don’t require an expert to measure.
THE COURT: He went out on Sunday, so he’s going to approximate what he knew on Sunday.
[Appellants’ counsel]: No, he’s—
THE COURT: No. You’re not going to ask the question.

During a recess, Appellants proffered testimony revealing that Kellner physically measured the distance discussed in Stokes’ pretrial deposition. Kellner measured the distance one or two days prior to the commencement of trial, at the request of his attorney. The proffered testimony challenged the accuracy of multiple measurements used by Stokes. Kellner testified that the true distance depicted in Stokes’ animations was “no less than a hundred feet.” Kellner claimed that he measured the accident scene and found a distance of 105 feet between the two points at issue in Stokes’ reconstruction. Following the proffer, the trial judge maintained her previous ruling concerning Kellner’s accident scene measurements.

Standard of review

“Generally, rulings on evidentia-ry matters are within the sound discretion of the trial court.” LaMarr v. Lang, 796 So.2d 1208, 1209 (Fla. 5th DCA 2001) (citing Connell v. Guardianship of Connell, 476 So.2d 1381, 1382 (Fla. 1st DCA 1985)). “A trial court has wide discretion in determining the admissibility of evidence, and, absent an abuse of discretion, the trial court’s ruling on evidentiary matters will not be overturned.” Id. (citing Dale v. Ford Motor Co., 409 So.2d 232, 234 (Fla. 1st DCA 1982)). “When reviewing erroneous rulings on evidentiary matters, we examine the entire record to determine if the error is harmless.” Id.

I. Binger analysis of Kellner’s testimony

In Binger v. King Pest Control, 401 So.2d 1310, 1313-14 (Fla.1981), the supreme court provided guidance for analyzing a trial court’s exclusion of testimony that should have been disclosed pursuant to a pretrial order, as follows:

The goals underlying discovery practice are readily apparent in Florida Rules of Civil Procedure 1.200(c), which provides that a trial court’s pretrial order detailing the agreements made by the parties “shall control the subsequent course of the action unless modified at the trial to prevent injustice.” Consistent with this rule, we now hold that a pretrial order directing the parties to exchange the names of witnesses requires a listing or notification of all witnesses that the parties reasonably foresee will be called to testify, whether for substantive, corroborative, impeachment or rebuttal purposes. Obviously, a general reference to “any and all necessary” impeachment or rebuttal witnesses, as was the case here, constitutes inadequate disclosure. We expressly disapprove decisions ... which hold or imply that certain types of witnesses are automatically exempt from the dictates of a pretrial disclosure order.
It follows, of course, that a trial court can properly exclude the testimony of a witness whose name has not been disclosed in accordance with a pretrial order. The discretion to do so must not be exercised blindly, however, and should be guided largely by a determination as to whether use of the undisclosed witness will prejudice the objecting party. Prejudice in this sense refers to the surprise in fact of the objecting party, and it is not dependent on the adverse nature of the testimony. Other factors which may enter into the trial court’s exercise of discretion are: (i) the objecting party’s ability to cure the prejudice or, similarly, his independent knowledge of the existence of the witness; (ii) the calling party’s possible intentional, or bad faith, noncompliance with the pretrial order; and (iii) the possible disruption of the orderly and efficient trial of the case (or other cases). If after considering these factors, and any others that are relevant, the trial court concludes that use of the undisclosed witness will not substantially endanger the fairness of the proceeding, the pretrial order mandating disclosure should be modified and the witness should be allowed to testify.

401 So.2d at 1313-14. The Binger factors, although not exhaustive, generally support the lower court’s discretionary decision to exclude Kellner’s measurement testimony.

a. Appellees’ knowledge of Kellner as a witness and their ability to cure prejudice resulting from his testimony

The first Binger factor supports both Appellants’ and Appellees’ positions. Appellees should have been aware that Kellner, as the driver of a vehicle involved in the accident, would testify at trial. Conversely, Appellees’ ability to cure the prejudice was hampered because their expert had fully testified, had been released from his witness subpoena, and was excused from the trial.

Appellants argue that Kellner should have been allowed to testify because Appellees failed to demonstrate that his testimony would have prejudiced their case. Appellants’ reliance on Moore v. Gillett, 96 So.3d 933 (Fla. 2d DCA 2012), and Spalding v. Zatz, 70 So.3d 692 (Fla. 5th DCA 2011), is misplaced because these cases are dissimilar to the fact pattern at issue. The second district in Moore ruled that an expert’s alleged “surprise” testimony “was consistent with [the expert’s] prior report” and reversed the trial court’s decision to grant a new trial. Moore, 96 So.3d at 943, 947. In Spalding, the opposing party did not claim surprise by the non-noticed expert testimony and instead “attempted to capitalize” on the expert’s new testimony. Spalding, 70 So.3d at 699. The opposing party also earlier attempted to exclude the “surprise” testimony via an unsuccessful motion in limine. Id. at 698. Furthermore, prejudice in the context of Binger “refers to the surprise in fact of the objecting party, and is not dependent on the adverse nature of the testimony.” 401 So.2d at 1314. Kellner’s attempt to testify clearly resulted in “surprise in fact” sufficient to prejudice Appellees’ case.

b. Appellants’ possible intentional or bad faith noncompliance with the pretrial order

We have previously granted trial courts wide discretion in determining whether to admit the testimony of a witness or other evidence not disclosed pursuant to a pretrial order. See Mistri v. Joseph Rutigliano & Sons, Inc., 827 So.2d 391, 392 (Fla. 5th DCA 2002) (affirming trial court’s exclusion of a document “of dubious authenticity” that was not produced in discovery or listed by the appellants as required by the court’s pretrial order). A party can claim surprise and a trial court may exclude witness testimony where that witness or testimony was not disclosed by the other party. Cascanet v. Allen, 83 So.3d 759, 763-64 (Fla. 5th DCA 2011) (citing Suarez-Burgos v. Morhaim, 745 So.2d 368, 370-72 (Fla. 4th DCA 1999)).

A trial court may admit witness testimony, despite late notice, if the opposing party has an opportunity to depose the witness about the new testimony and is not prejudiced by the new testimony itself. See Utica Mut. Ins. Co. v. Pa. Nat’l Mut. Cas. Ins. Co., 639 So.2d 41, 43 (Fla. 5th DCA 1994) (affirming trial court’s decision to allow additional expert testimony despite late notice where opposing party had the opportunity to depose the new expert the night before trial); Baker v. Mathew, 518 So.2d 290, 290-91 (Fla. 5th DCA 1987) (reversing trial court’s refusal to permit additions to the witness list where the addition was made six days after discovery cut-off but more than three months before trial).

Applying the second Binger factor to the present case supports the lower court’s exclusion of Kellner’s measurement testimony. Here, Appellants attempted to introduce measurements collected six months after discovery cut-off, one month after filing witness synopses, and one or two days before beginning the trial. Appellants provided no notice of Kellner’s expected testimony and no opportunity for Appellees to conduct meaningful discovery of his measurements.

Appellants’ concealment of Kellner’s measurements until he testified is concerning. Appellants engaged in a deliberate strategy of first disclosing and then withdrawing an accident reconstructionist who would have presumably testified about critical distances at the accident scene and calculations of the vehicles’ speeds. None of the documents Appellants filed with the lower court demonstrated Kellner’s intent to challenge Stokes’ measurements or calculations. Instead, Appellants furthered their strategy by directing Kellner, one or two days prior to the beginning of the trial, to take specific measurements for the purpose of directly challenging the accuracy of corresponding measurements taken by Appellees’ properly-disclosed and deposed expert. Appellants’ conduct is the type of “trial by ambush” addressed in Tetrault v. Fairchild, 799 So.2d 226, 229 (Fla. 5th DCA 2001) (Harris, J., concurring).

c. Possible disruption of the orderly and efficient trial of the case

Allowing Kellner’s testimony would have disrupted trial because the parties would have needed a recess from the trial proceedings to engage in further discovery, including a scene inspection and follow-up depositions. As a further inconvenience, Appellees would have needed an opportunity to recall their accident recon-structionist, which would have delayed trial.

Appellants rely principally upon Davis v. Pfund, 479 So.2d 230 (Fla. 3d DCA 1985), to suggest that a witness may return to the scene of an accident and take measurements after discovery cut-off. Davis is not applicable to the instant case. In Davis, the plaintiffs expert witness “returned to the scene of the accident and [took] certain measurements in order to clarify his original drawings.” Id. at 231. Furthermore, the expert witness-and his drawings were properly noticed and provided to opposing counsel prior to the close of discovery. Id. Here, Kellner was not an expert witness and was not “clarifying” his earlier deposition testimony. Furthermore, Kellner was not included in either of Appellants’ final witness lists, and Appellees had no notice of his intent to testify regarding the distance measurements. The testimony in this case established that Kellner acted at the request of his trial counsel in taking certain measurements, one or two days prior to the start of trial, to oppose the expert testimony from Appellees’ accident reconstructionist.

We conclude that Appellants failed to demonstrate an abuse of the lower court’s broad discretion conferred by Binger. Appellants’ serious violations of the pretrial disclosure rules support the lower court’s decision to exclude Kellner’s testimony. “Trial courts should not allow litigants to circumvent the rules by preparing [this type of evidence] at the last minute.” Thompson v. Wal-Mart Stores, Inc., 60 So.3d 440, 444 (Fla. 3d DCA2011). The potential prejudice from the testimony to Appellees’ case was clear. Appellees’ expert had finished testifying, and had been excused from trial. Allowing the testimony would have disrupted the trial and dis-served judicial economy. In light of our analysis, we affirm the lower court’s decision to exclude Kellner’s testimony about his accident scene measurements.

II. Loss of future earning capacity

We are persuaded by Appellants’ arguments and find that the record supports an award of only $390,000 in lost future earnings capacity as a result of this accident. The lower court’s original award of $420,000 in lost future earnings capacity resulted from calculation errors introduced in Appellees’ closing argument. We remand for the trial court to enter judgment in the amount of $390,000 for loss of future earnings capacity.

We hold the lower court did not abuse its discretion when it excluded Kellner’s accident scene measurements. Appellants had ample opportunity to contest the measurements and calculations provided by Appellees’ expert, either through competing expert testimony or by properly noticing the lower court and Appellees of Kellner’s expected testimony. Instead, Appellants caused Kellner to take measurements shortly before trial and did not notify Appellees of those measurements until Kellner attempted to testify at trial. Accordingly, we affirm the lower court’s decision to exclude Kellner’s accident scene measurements and remand for the trial court to enter judgment in an appropriate amount for David’s loss of future earnings capacity.

AFFIRMED in part; REVERSED in part, and REMANDED with INSTRUCTIONS.

BERGER, J., concurs.

ORFINGER, J., concurs in part and dissents in part with opinion.

ORFINGER, J.,

concurring in part; dissenting in part.

I concur in the majority opinion except as to the exclusion of Kellner’s testimony about the measurements he took at the accident scene. On that issue, I believe the trial court reversibly erred and that the majority fails to properly apply the factors relevant to the exclusion of evidence mandated by Binger v. King Pest Control, 401 So.2d 1310 (Fla.1981).

The speed of David’s motorcycle at the time of the accident was the major liability issue at trial, particularly as it related to her comparative fault, if any. Kellner claimed that David was speeding at the time the vehicles collided. During discovery, the parties obtained copies of a security video from a nearby store, which recorded the accident. David’s accident reeonstructionist, Alan Stokes, did not visit the accident scene. Instead, he used several computer mapping programs and two still frames obtained from the video tape, taken one second apart, showing two fixed landmarks where the motorcycle can also be seen. Stokes testified that the two landmarks were seventy-five feet apart and that David’s.motorcycle traversed that distance in one second. He testified that “distance equals velocity times time.” Applying that formula, and the distance and time he extrapolated from the video, Stokes calculated David’s estimated speed at the time of the crash to be approximately the speed limit.

Kellner disputed Stokes’s seventy-five foot measurement of the critical distance between the two points. He claimed, on proffer, that Stokes’s measurements were wrong and that he measured the actual distance at 105 feet. The importance of an accurate measurement is obvious — if the motorcycle traveled a longer distance in the same amount of time, it would have been traveling faster at the time of the crash.

Kellner is a builder who drove almost daily through the accident scene. Several days before the trial began, Kellner went to the scene of the crash and measured the distance between the two landmarks relied on by Stokes. If Kellner’s measurements are correct, using the formula provided by Stokes, the jury could have concluded that David was traveling more than twenty miles over the posted speed limit, rather than at the speed limit as Stokes calculated. This evidence might have supported Kellner’s comparative negligence defense.

Before Kellner had an opportunity to testify to his measurements, and without objection from David’s counsel, the court called the attorneys to the bench and asked David’s attorney: “Where are you going with this? It’s not happening. Number one, it was past discovery cutoff. It’s been done after discovery cutoff, it’s discovery, he’s not an expert. You’re not going there.” The trial court prohibited Kellner from testifying to either his actual measurements or his estimate of the distance between the two points.

I believe the trial court erred when it excluded the evidence. The majority makes no effort to defend the trial judge’s view that an expert is required to measure a distance of one hundred or so feet. Lay witnesses may generally testify as to both distance and speed. Chesser v. State, 30 So.3d 625, 627-28 (Fla. 1st DCA 2010) (citing Charles W. Ehrhardt, Ehrhardt’s Fla. Evidence § 701.1 at 668-71 (2008 ed.)). Expert testimony would be required to measure the distance between, for example, the earth and the moon, since that measurement is outside the ordinary experience of most witnesses and jurors. However, measuring distances of one hundred feet or so is well within the common experience of most people and does not require expert testimony.

Instead, the majority concludes that the trial court properly excluded the testimony because of a perceived discovery violation. I am not persuaded that any discovery violation occurred. That Kellner would testify to the circumstances of the crash and the observations he made regarding the accident scene should have come as no surprise. And, as David’s counsel candidly admitted, Kellner was never asked at deposition or otherwise during discovery about the dimensions or the configuration of the accident scene. This is not a situation where a witness said one thing at deposition, and then changed his answer at trial. Here, the question was never asked. For a party to claim unfair surprise, he or she must have exercised reasonable diligence to protect himself or herself from such surprise by making use of the available discovery devices. Passino v. Sanburn, 190 So.2d 61, 63-64 (Fla. 3d DCA 1966); Bowen v. Manuel, 144 So.2d 341 (Fla. 2d DCA 1962). That did not occur here.

The majority is correct that the Binger opinion provides guidance for analyzing the trial court’s exclusion of testimony that should have been disclosed during discovery. However, the majority misapplies the Binger factors to this case. Binger held that the primary consideration for the trial court when confronting a discovery violation is “a determination as to whether use of the undisclosed witness [or testimony] will prejudice the objecting party. Prejudice in this sense refers to the surprise in fact of the objecting party, and it is not dependent on the adverse nature of the testimony.” 401 So.2d at 1314 (footnotes omitted).

If we assume, as the majority does, that a discovery violation occurred, then Binger would require the trial judge to determine the procedural, not substantive, prejudice to the objecting party (although here, the objecting party was the trial court). The trial court did not do so. It made no inquiry regarding prejudice or David’s ability to cure the prejudice as Binger requires. In my view, the trial court erred when it concluded that there was a discow ery violation, when it failed to determine how David was prejudiced, and by failing to determine if David could have cured the prejudice. I suspect it would have been easy to have Stokes, or some other representative, go to the scene of the accident and measure the distance on David’s behalf.

There is no doubt that Kellner was primarily, if not exclusively, responsible for this collision. But- depriving him of his main defense, David’s alleged comparative negligence, unfairly tilted the balance against Kellner. I believe a new trial on liability is warranted.

      . On March 4, 2011, Bergerson filed a witness list, which included "[a]ll persons named by [Kellner].”

      . Stokes earned a degree in engineering from the University of Florida, was accredited by the Accreditation Commission for Traffic Accident Reconstructionists, and was certified as a forensic consultant by the American College of Forensic Examiners. Stokes indicated that he had appeared as an expert witness in Florida courts about fifteen times. Appellants never challenged Stokes’ qualifications as an accident reconstructionist.

      . Stokes estimated the distance between David's positions in two frames of the surveillance video footage as 75 feet. The two frames were taken one second apart. Most of Stokes’ calculations estimated a speed of between 43 and 47 miles per hour for David's motorcycle immediately before impact.

      . In sustaining the objection, the trial court provided:
      My ruling remains the same. Number one, any measurements that you elicited testimony were done two or three days ago. That's outside the discovery timeframe. You set him up as an expert, which there was no representation that he would do any kind of accident reconstruction or any kind of measurements. Not only was he — and I don't care that you didn't list him on the witness list, the letter that you sent in that you forgot to put your people on, but he’s not on there as indicating anything about measurements or reconstruction of the accident scene at all. You’ve known about Mr. Stokes for some time, and I would have assumed that you would have discussed that with your client so you could let the other side know there were going to be some issues with regard to that.

      . During closing argument, Appellees’ counsel asked the jury to assume that David would work 52 weeks per year for another 15 years and would earn approximately $400 per week. Appellees’ counsel then incorrectly calculated David's lost earnings capacity as $420,000. However, properly applying their own counsel’s suggested assumptions results in a loss of future earnings capacity of only $312,000. Considering the evidence — including testimony that David earned $500 per week — in the light most favorable to Appel-lees, an award of up to $390,000 is appropriate.


author: LEVINE, J.

text:
    Jeffrey KILNAPP, Appellant, v. Colleen M. KILNAPP, Appellee.
    No. 4D13-3271.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2014.

      Craig A. Boudreau, Wellington, for appellant.
    John F. Schütz of Schütz & White, LLP, West Palm Beach, for appellee.
   LEVINE, J.

The husband appeals a non-final order requiring him to repay alleged marital funds he removed from certain bank accounts and granting an injunction temporarily freezing those accounts. Because the court concluded the evidentiary hearing and issued the order without allowing the husband to present evidence, the trial court violated the husband’s due process rights. We therefore reverse the temporary injunction issued by the trial court.

Colleen Kilnapp, the wife, filed a motion alleging that Jeffrey Kilnapp, the husband, unilaterally removed over $3.5 million dollars in marital funds from certain accounts. The trial court set a three-hour evidentiary hearing on the wife’s motion. At the hearing, the wife called the husband as her first witness. The trial court was aware that the husband intended to call both his wife and a forensic certified public accountant as witnesses in his case, and both witnesses were sworn in.

The husband testified to unilaterally moving funds from accounts where the wife was either a joint owner or accounts titled solely in the husband’s name where the wife was a signatory. The husband said that he used the funds to pay off liabilities. He further stated that he moved the funds because his wife was removing funds from the accounts, which prevented him from making payroll for his business.

During cross and direct examination of the husband by his own counsel, the husband’s counsel introduced a prenuptial agreement between the husband and wife. The agreement summarily stated that both parties would keep their own respective real and personal property along with any interest or increase in value. The husband also testified as to multiple governmental investigations and audits of his business regarding unpaid overtime for employees. The husband hypothesized that if the funds were frozen, then he would likely have to close his business and file for bankruptcy.

When the husband started to assert that the wife had “unclean hands,” the trial court stated:

Well, I’d rather not, too. But you’re going to get up and then you’re going to attack the Pre-Nuptial Agreement and yada, yada, yada, back and forth, and what this is really is trying to enjoin some funds that were transferred, whether rightfully or wrongfully, and we’re going to go all over the place, and at 5 o’clock, I turn into a pumpkin, you guys.

The hearing continued with following testimony:

[HUSBAND’S COUNSEL]: After the injunction hearing took place, what did your wife do within an hour of the hearing that day?
[HUSBAND]: She went to the house and emptied it out, rifled my safe, stole all my jewelry, took my stereo, all my personal things.
THE COURT: I’m going to happy hour. I’m tired of this crap. I warned him about five times.
[HUSBAND]: But he asked me the question.
THE COURT: I’m done. Get out of here.
[HUSBAND]: What happened?
(Whereupon, at 2:30 p.m., the foregoing hearing was adjourned.)

At that point, only about an hour of the time allocated for the hearing had elapsed. The husband’s attorney had not finished examining the husband, and the husband had not presented testimony from the wife or his forensic accountant.

Approximately one week later, the trial court entered an order requiring the husband to repay $50,000, $93,005, and $3,138,201 to three separate Bank of America accounts. The husband appeals this order, as well as the successor trial judge’s denial of the husband’s motion for reconsideration.

“We review the question of whether a party was denied the opportunity to be heard for an abuse of discretion.” Henderson v. Lyons, 93 So.3d 399, 400 (Fla. 2d DCA 2012). “The denial of due process rights, including the opportunity to be heard, to testify, and to present evidence, is fundamental error.” Weiser v. Weiser, 132 So.3d 309, 311 (Fla. 4th DCA 2014).

Essential to the concept of procedural due process is the opportunity to be heard. Dep’t of Law Enforcement v. Real Prop., 588 So.2d 957, 960 (Fla.1991); see also Sheffey v. Futch, 250 So.2d 907, 910 (Fla. 4th DCA 1971) (“[D]ue process has been defined in non-criminal situations as contemplating reasonable notice and an opportunity to appear and be heard”). “While courts have broad authority to control their dockets, trial judges must use this authority to ‘manage their courtrooms so that the people’s business may be conducted fairly, efficiently, and expeditiously.’ ” Smith v. Smith, 964 So.2d 217, 218 (Fla. 2d DCA 2007) (quoting McCrae v. State, 908 So.2d 1095, 1096 (Fla. 1st DCA 2005)). Moreover, “[t]he trial court has a duty to control the proceedings, ensuring that both sides have a fair share of the court’s time.” Id. at 219.

In the present case, the trial court cut off the hearing after about an hour despite the three-hour time allotment. The trial court only heard from the wife’s witness, that being the husband, who the wife’s counsel examined on direct. When the trial court ended the hearing, the husband’s counsel was still in the middle of examining the husband. The trial court ended the hearing before the husband had the opportunity to .call the wife or his forensic certified public accountant, who had already been sworn in by the court to testify.

The trial court erred when it denied the husband his basic and fundamental right to due process, specifically the right to be heard. See Douglas v. Johnson, 65 So.3d 605, 607 (Fla. 2d DCA 2011) (“When a court fails to give one party the opportunity to present witnesses or testify on his or her own behalf, the court has violated that party’s fundamental right to procedural due process.”); see also Adili v. Adili 913 So.2d 1240, 1240-41 (Fla. 4th DCA 2005) (reversing an injunction for protection against domestic violence where the court heard only from the wife and her witnesses and ruled in the wife’s favor before allowing the husband to present any witnesses or evidence); Pope v. Pope, 901 So.2d 352, 353 (Fla. 1st DCA 2005) (same); Miller v. Miller, 691 So.2d 528, 529 (Fla. 4th DCA 1997) (same).

In summary, we find that the trial court abused its discretion, and we reverse and remand for a new hearing consistent with this opinion.

Reversed and remanded.

WARNER, J., and TUTER, JACK, Associate Judge, concur.

      . The husband filed a timely motion to disqualify or recuse the trial judge, which the trial judge granted.


text:
    Stephanie NATHANSON, Appellant, v. Gregory Edward RISHYKO, Appellee.
    No. 4D13-938.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2014.

      Cynthia L. Greene of the Law Offices of Greene Smith <& Associates, P.A., Miami, and the Law Office of Stephen J. Rogers, P.A., Stuart, for appellant.
    Jeffrey H. Garland of Jeffrey H. Garland, P.A., Fort Pierce, for appellee.
   PER CURIAM.

Stephanie Nathanson, the Former Wife/Mother, appeals the trial court’s final judgment denying her counter-petition to modify parental responsibility and access, and an order finding her in civil contempt. We find no abuse of discretion in the trial court’s denial of the Mother’s modification petition, and affirm on that issue. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980); Franqui v. State, 59 So.3d 82, 92 (Fla.2011).

The Mother next asserts the trial court erred in adjudicating her in contempt of court because the evidence failed to support a finding that her conduct was intentional. Here, the final judgment “contains no purge provisions because it imposes no sanctions to be avoided.” Stramaglia v. Marubeni Am. Corp., 561 So.2d 433, 434 (Fla. 4th DCA 1990). Further, the trial court reserved jurisdiction on the issue of sanctions, and thus “the judicial labor has not ended on the contempt issue.” Id. Accordingly, this court is without jurisdiction to review the order on contempt, and we therefore dismiss the appeal as to this issue. This dismissal is without prejudice to the mother’s right to appeal the issue once the trial court has determined sanctions.

Affirmed in part; Dismissed in part.

MAY, CIKLIN and KLINGENSMITH, JJ., concur.