author: ROTHENBERG, J.

text:
    DINURO INVESTMENTS, LLC, Appellant, v. Felisberto Figueira CAMACHO, et al., Appellees.
    Nos. 3D13-1242, 3D13-1246.
    District Court of Appeal of Florida, Third District.
    July 9, 2014.

      Arnaldo Velez, Coral Gables, and Peter C. Bianchi, Jr., Palmetto Bay, for appellant.
    Avila Rodriguez Hernandez Mean & Ferri LLP, and Wilfredo A. Rodriguez and Eduardo F. Rodriguez, Miami, for appellee Ocean Bank; Shutts & Bowen LLP, and Steven M. Ebner and Stephen T. Maher, Miami, for all other appellees.
    Before ROTHENBERG, LOGUE, and SCALES, JJ.
   ROTHENBERG, J.

The plaintiff below, Dinuro Investments, LLC (“Dinuro”), appeals an order dismissing four counts of its complaint against the defendants. The trial court found that Dinuro lacks standing in its individual capacity and should have instead brought the suit derivatively on behalf of the limited liability company (“LLC”). This case presents us with an issue of law manifesting itself in increasing frequency — when does a member of an LLC have individual standing to bring suit against fellow members? We find, based on our comprehensive review of Florida case law, that in order to bring suit against other members of an LLC individually, a member must allege either (1) direct harm and special injury; or (2) a special contractual or statutory duty owed from the defendant member to the plaintiff member. Because Dinuro has satisfied neither of these tests, we affirm the trial court’s dismissal.

BACKGROUND

In 2005, Dinuro, Merici, LLC (“Merici”), and Starmac, LLC (“Starmac”) established San Remo Homes, LLC (“San Remo”), a limited liability company, to develop real property in Florida. Merici is controlled by Felisberto Camacho (“Camacho”), and Starmac is controlled by Javier Macedo (“Macedo”). The three members of San Remo (Dinuro, Merici, and Starmac) created two branches of San Remo, one in Florida City (“San Remo FC”) and one in Homestead (“San Remo HS”) (collectively, “the San Remo Entities”). Each of the three members contributed funds and received a one-third ownership and management interest in the San Remo Entities. After formation, the San Remo Entities obtained financing to purchase pieces of real estate in Florida City and Homestead through Ocean Bank. These loans were secured by promissory notes (“the Notes”) in favor of Ocean Bank. Macedo, who controls Starmac, is also on the board of directors at Ocean Bank.

Due to the declining housing market, the San Remo Entities had difficulty meeting then* loan obligations and were forced to negotiate loan modifications with Ocean Bank. After these modifications, the Notes were set to mature on March 29, 2010, and Ocean Bank also required that the members make additional contributions to the San Remo Entities. Although Merici and Starmac made these additional contributions, Dinuro did not. As the maturity date approached, Merici and Star-mac refused to front Dinuro’s portion of the contributions to satisfy their obligations to Ocean Bank, and thus, the Notes went into default.

Macedo and Camacho collaborated through other entities controlled by them, Romac, LLC and Felma, LLC, respectively, to form a new entity, SR Acquisitions, LLC, which itself has two sub-entities, SR Acquisitions-Florida City, LLC and SR Acquisitions-Homestead, LLC (collectively, “SR Acquisitions”). On August 9, 2011, Macedo and Camacho, through SR Acquisitions, purchased the Notes from Ocean Bank for the full outstanding Note amount. Dinuro was approached to join in this new venture, but instead tried unsuccessfully to repurchase the Notes by itself. SR Acquisitions’ purchase of the Notes essentially resulted in San Remo owing its entire outstanding debt to SR Acquisitions, which was comprised entirely of companies owned by Macedo and Camacho — who also owned two of the three companies with a membership interest in San Remo.

SR Acquisitions acquired the Notes, and it subsequently pursued two foreclosure actions against the San Remo Entities to regain the property secured by the Notes. The San Remo Entities, controlled by Ma-cedo and Camacho, did not respond to the foreclosure action, and in March 2011, a default was entered against the San Remo Entities in both foreclosure actions. After substantial litigation, which included this Court ruling that Dinuro had no standing to intervene in one of the foreclosure actions, SR Acquisitions-Florida City, LLC v. San Remo Homes at FloHda City, LLC, 78 So.3d 636 (Fla. 3d DCA 2011) (“the Mandamus Action”), SR Acquisitions acquired the Homestead and Florida City properties, leaving Dinuro with no ownership interest in the properties and the San Remo Entities with no viable assets.

In April 2011, Dinuro initiated the underlying action against the appellees, which include Macedo, Camacho, and all of their related entities, as well as Ocean Bank, claiming in relevant part: the defendants breached the parties’ contract, specifically the San Remo Entities’ operating agreements (Count I); Macedo and Camacho tortiously interfered by causing their entities to breach the operating agreement (Count II); Ocean Bank tor-tiously interfered by inducing the other defendants to breach the operating agreement by offering to allow them to purchase the Notes at a discounted rate (Count III); and Merici, Starmac, Macedo, Camacho, and Ocean Bank conspired to cause the damage outlined in the previous counts (Count V). The defendants moved to dismiss the complaint on several grounds, including lack of individual standing. The trial court ultimately granted the motion to dismiss on the basis that Dinuro’s claims were derivative, not direct, and that it therefore lacked standing. Dinuro appealed the dismissal of its claims against Ocean Bank and the defendants separately, and the appeals were consolidated for our review.

DISCUSSION

We review a trial court’s grant of a motion to dismiss de novo, and we assume for purpose of our analysis that all of the complaint’s well-pleaded allegations are true. Morin v. Fla. Power & Light Co., 963 So.2d 258, 260 (Fla. 3d DCA 2007). With this standard in mind, we address Dinuro’s claims.

I. Dinuro’s claims allege Dinuro was deprived of value when Merici and Starmac wrongfully devalued San Remo

Dinuro has asserted a breach of contract claim against Macedo, Camacho, and their controlled entities (Starmac and Merici, respectively) for actions that allegedly violate various terms of the San Remo operating agreement. Dinuro has also asserted tortious interference claims against the member companies of SR Acquisitions and against Ocean Bank. The alleged result of these breaches is that San Remo was completely devalued based on the actions of two of the three members, Merici and Starmac, leaving the third member, Dinu-ro, with nothing to show for its investment. The trial court dismissed these claims, finding that Dinuro lacked individual standing to bring a direct claim against the other members for this type of harm, and that its claims should have been brought derivatively on behalf of San Remo. We agree, and write to provide clarity on a complicated point of law.

A. When can an action alleging damages resulting from membership in an LLC be brought directly in an individual suit?

Whether a particular action may be brought as a direct suit or must be maintained as a derivative suit can be a confusing inquiry. After all, a member or shareholder with a personal stake in a company or corporation necessarily sustains a loss when the company loses value, and determining which types of loss are directly compensable by direct suit requires fine lines to be drawn. These distinctions are even more difficult to draw for closely held corporations and LLCs, which typically have fewer individuals that possess an ownership interest, because claims of mismanagement or self-dealing become a zero-sum game in which one party profits from the company’s loss, while the other is harmed due to the company’s reduced value. See John W. Welch, Shareholder Individual and Derivative Actions: Underlying Rationales and the Closely Held Corporation, 9 J. Corp. L. 147, 153-54 (1984) (“[A]s the community of interests between shareholders and their closely held corporation becomes more tightly interwoven, the basis upon which one differentiates derivative from individual actions becomes more critical and, as a consequence, the cases become less self-evident.”).

Confounding this already complicated issue is the lack of clarity in Florida case law regarding what standard to apply when determining whether a suit for damage to a member or company can be brought directly. Our review of the scholarly literature and case law from around the country evidences three specific approaches relied upon to determine whether an action may be brought directly or derivatively: (1) the “direct harm” test; (2) the “special injury” test; and (3) the “duty owed” test. See, e.g., Daniel S. Kleinberger, Direct Versus Derivative and the Law of Limited Liability Companies, 58 Baylor L. Rev. 63, 87-110 (2006); Elizabeth J. Thompson, Direct Harm, Special Injury, or Duty Owed: Which Test Allows for the Most Shareholder Success in Direct Shareholder Litigation?, 35 J. Corp. L. 215, 220-22 (2009). We briefly explain each of these approaches, along with their respective merits and difficulties, before explaining Florida’s current stance on this issue based on existing case law.

1. The Direct Harm Test

A majority of courts across the country appear to apply the “direct harm” test, which distinguishes direct from derivative actions by examining whether the harm from the alleged wrongdoing flows first to the company and only damages the shareholders or members due to the loss in value of their respective ownership interest in the company, or whether the harm flows “directly” to the shareholder or member in a way that is not secondary to the company’s loss. See, e.g., Schuster v. Gardner, 127 Cal.App.4th 305, 25 Cal.Rptr.3d 468, 473 (2005) (“[A] shareholder cannot bring a direct action for damages against management on the theory their alleged wrongdoing decreased the value of his or her stock (e.g., by reducing corporate assets and net worth).” (emphasis in original)); Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031, 1035-36 (Del.2004) (“The analysis must be based solely on the following questions: Who suffered the alleged harm — the corporation or the suing stockholder individually — and who would receive the benefit of the recovery or other remedy?”); Lightner v. Lightner, 46 Kan.App.2d 540, 266 P.3d 539, 545 (2011) (“Shareholders do not have standing to sue for harms to the corporation or even for the derivative harm to themselves that might arise from a tort or other wrong to the corporation.”); Shenker v. Laureate Educ., Inc., 411 Md. 317, 983 A.2d 408, 424 (2009) (“In contrast to a derivative action, a shareholder may bring a direct action, either individually or as a representative of a class, against alleged corporate wrongdoers when the shareholder suffers the harm directly or a duty is owed directly to the shareholder, though such harm also may be a violation of a duty owing to the corporation.”).

The direct harm approach, then, looks at the injury alleged by the individual shareholder and determines whether that injury flows from some damage to the company itself. Thus, the examining court must compare the individual’s harm to the company’s harm. Under this test, a shareholder can only bring a direct suit if the damages are unrelated to the damages sustained by the company and if the company would have no right to recover in its own action. See Tooley, 845 A.2d at 1036. This approach likely provides the greatest simplicity in application, as the courts need only look to whether the alleged wrongful conduct devalued the company as a whole or was directed specifically towards the individual plaintiff.

One downside to this approach, however, is that it potentially allows a wrongdoer to devalue the company for personal gain without fear of personal repercussions. Claims alleging that a majority member has embezzled assets from the company to the detriment of minority members, for example, would only be cognizable as derivative actions, and any recovery for such an action would go to the company. The wrongdoer would then receive a proportionate share of the return of the embezzled funds so that he is made whole despite being the very party causing the harm. In other words, a strict “direct harm” approach may be especially harsh in small company settings because minority members will not be able to recover personal money that is taken by an oppressive majority.

2. The Special Injury Test

Another test utilized in many jurisdictions is the so-called “special injury” test. This test requires the court to compare the individual plaintiffs alleged injury to those injuries suffered by the other members or shareholders of the company and then determine whether the plaintiffs injury is separate and distinct from other members or shareholders. See, e.g., Hanson v. Kake Tribal Corp., 939 P.2d 1320, 1327 (Alaska 1997) (“A plaintiff alleges a special injury and may maintain an individual action if the shareholder complains of an injury distinct from that suffered by other shareholders, or a wrong involving one of the shareholder’s contractual rights as a shareholder.” (quoting 13 Fletcher Cyclopedia of the Law of Private Corporations § 5908)); Tooley, 845 A.2d at 1035 (“A special injury is a wrong that is separate and distinct from that suffered by other shareholders, ... or a wrong involving a contractual right of. a shareholder, such as the right to vote, or to assert majority control, which exists independently of any right of the corporation.” (alteration in original) (internal quotations omitted)); Sw. Health & Wellness, L.L.C.. v. Work, 282 Ga.App. 619, 689 S.E.2d 570, 575-76 (2006) (“While shareholders may also bring direct actions for injuries done to them in their individual capacities by corporate fiduciaries, in order to pursue such a direct claim the shareholder must allege more than a wrong done to the corporation, either a separate and distinct injury from that suffered by other shareholders or a wrong involving a contract right existing independently of any right of the corporation.”); Loewen v. Galligan, 130 Or.App. 222, 882 P.2d 104, 119 (1994) (“A special injury is established where there is a wrong suffered by the shareholder not suffered by all shareholders generally or where the wrong involves a contractual right of the shareholders, such as the right to vote.”).

Jurisdictions applying the “special injury” test require a plaintiff to demonstrate that he has sustained a loss that is substantially different from those losses sustained by other shareholders or members before he can maintain an individual or direct suit. Such a test allows greater flexibility for plaintiff-members to bring a direct suit in small closely held corporations or limited liability companies. See Kleinberger, supra, at 120 (explaining how the court in Ayres v. AG Processing Inc., 345 F.Supp.2d 1200, 1208-09 (D.Kan.2004), allowed a direct individual suit against other members of an LLC who conspired to deprive the plaintiff-member of profits because the plaintiffs injuries were “separate and distinct”). However, this test can be much more difficult to apply, as the “special” nature of the injury can be a nebulous inquiry that is often not readily apparent.

3. The Duty Owed Test

A final iteration of the standard for determining when an action should be direct or derivative is the “duty owed” test. This test simply examines the statutory and contractual terms to determine whether the duty at issue was owed to the individual member or shareholder by a particular manager or member, or whether those duties were owed to the company generally. See, e.g., G & N Aircraft, Inc. v. Boehm, 743 N.E.2d 227, 235 (Ind.2001) (“We believe that the correct approach draws the distinction based on the rights the shareholder asserts. Under this view, a direct action may be brought when: ‘it is based upon a primary or personal right belonging to the plaintiff — stockholder_ It is derivative when the action is based upon a primary right of the corporation but which is asserted on its behalf by the stockholder because of the corporation’s failure, deliberate or otherwise, to act upon the primary right.’ ” (alteration in original) (quoting Schreiber v. Butte Copper & Zinc Co., 98 F.Supp. 106, 112 (S.D.N.Y.1951))). Many courts have also applied this test as an exception to the general rule requiring either direct harm or special injury. See, e.g., Harrington v. Batchelor, 781 So.2d 1133, 1135 (Fla. 3d DCA 2001) (holding that a plaintiff may assert a direct action when there is a special duty owed even if the harm otherwise flows to the company); Shenker, 983 A.2d at 424 (“[A] shareholder may bring a direct action ... against alleged corporate wrongdoers when the shareholder suffers the harm directly or a duty is owed directly to the shareholder, though such harm also may be a violation of a duty owing to the corporation.” (emphasis added)).

The “duty owed” approach allows for the greatest freedom of contract, as parties can actively decide whether and when to allow direct suit between members for various categories of conduct. Unfortunately, many operating agreements and statutes do not specify who owes a particular duty, and to whom that duty is owed. Indeed, section 608.4225(1), Florida Statutes (2008), subjects all managing members to a duty of loyalty and care that is owed “to the limited liability company and all of the members of the limited liability company.” (emphasis added). In such cases, the “duty owed” test may provide little guidance or can be interpreted to allow either a direct or derivative suit.

4. Florida’s Test

Florida law, as it currently stands, embraces none of these tests individually, but utilizes all three to determine whether an action can be brought directly. As the Florida Supreme Court has not established a rule on this issue, a determination of the current standard requires the synthesis of nearly fifty years of case law developed in the Florida Courts of Appeal.

The first Florida case to enunciate a rule governing the direct versus derivative action distinction was Citizens National Bank of St. Petersburg v. Peters, in which the Second District Court of Appeal held that:

A Florida court has defined a derivative suit as an action in which a stockholder seeks to enforce a right of action existing in the corporation. Conversely, a direct action, or as some prefer, an individual action, is a suit by a stockholder to enforce a right of action existing in him.
What these definitions attempt to convey is that a stockholder may bring a suit in his own right to redress an injury sustained directly by him, and which is separate and distinct from that sustained by other stockholders. If, however, the injury is primarily against the corporation, or the stockholders generally, then the cause of action is in the corporation and the individual’s right to bring it is derived from the corporation.

175 So.2d 54, 56 (Fla. 2d DCA 1965) (third emphasis added) (internal citations omitted).

Peters seems to require both direct harm and special injury before a member or shareholder can maintain a direct action, and that language has essentially become canon in Florida corporate law, as nearly all subsequent cases deciding whether an action is direct or derivative have quoted Peters or one of its progeny. See, e.g., Karten v. Woltin, 23 So.3d 839, 840-41 (Fla. 4th DCA 2009) (quoting Fort Pierce Corp. v. Ivey, 671 So.2d 206, 207 (Fla. 4th DCA 1996)); Ivey, 671 So.2d at 207 (quoting Peters, 175 So.2d at 56); Alano v. Miller, 354 So.2d 925, 926 (Fla. 2d DCA 1978) (quoting Peters, 175 So.2d at 56); Fried v. Easton, 293 So.2d 87, 88 (Fla. 3d DCA 1974) (quoting Peters, 175 So.2d at 56).

This two-prong approach can be relatively simple, and Florida is certainly not unique in requiring multiple tests to be satisfied prior to the initiation of a direct action. See, e.g., Altrust Fin. Servs., Inc. v. Adams, 76 So.3d 228, 241 (Ala.2011) (“It is only when a stockholder alleges that certain wrongs have been committed by the corporation as a direct fraud upon him, and such wrongs do not affect other stockholders, that one can maintain a direct action in his individual name.” (emphasis added) (quoting Green v. Bradley Constr., Inc., 431 So.2d 1226, 1229 (Ala.1983))). However, Florida cases applying the Peters standard have not analyzed the issue uniformly or even explicitly acknowledged a two-prong standard.

For example, many cases have quoted the Peters test and then analyzed only whether a direct harm was inflicted. See, e.g., AmSouth Bank v. Wynne, 772 So.2d 574, 575 (Fla. 1st DCA 2000) (“In the instant case, the damages claimed by appellees flowed primarily from injuries to [the companies], respectively. The injuries to appellees were indirect, indistinct from injuries to other shareholders, and did not provide a basis for their individual suits.”); Alario, 354 So.2d at 926 (“If the damages are only indirectly sustained by the stockholder as a result of injury to the corporation, the stockholder does not have a cause of action as an individual.”); Fried, 293 So.2d at 88 (“After a careful reading of the counterclaim, we find that the counter-claimant alleges therein no injury directly sustained by him, but rather only injuries inflicted upon the corporation.”). Conversely, other Florida cases ruling on this issue have ostensibly stated the two-prong standard and then based their holding solely on the “special injury” test. See, e.g., Chemplex Fla. v. Norelli, 790 So.2d 547, 549 (Fla. 4th DCA 2001) (“The [plaintiffs’] allegation that they were harmed individually is not itself conclusive without additional factual allegations showing their injuries were separate and apart from those of other shareholders.”); Salit v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 742 So.2d 381, 389 (Fla. 4th DCA 1999) (“To state a claim, appellants must show special damages, a loss actually sustained by them which might not be common to other shareholders.”).

To further complicate the issue, Florida courts also recognize an exception to the Peters test when an individual member or manager owes a specific duty to another member or manager apart from the duty owed to the company. See, e.g., Braun v. Buyers Choice Mortg. Corp. ex rel. McAloon, 851 So.2d 199, 203 (Fla. 4th DCA 2003) (“Generally, a shareholder cannot sue in the shareholder’s name for injuries to a corporation unless there is a special duty between the wrongdoer and the shareholder, and the shareholder has suffered an injury separate and distinct from that suffered by other shareholders.”); Harrington, 781 So.2d at 1135-36 (“[A] shareholder can sue for breach of [a] contract to which he is a party, even if he has not suffered an injury separate and distinct from that suffered by other shareholders.” (alterations in original) (quoting Hikita v. Nichiro Gyogyo Kaisha, Ltd., 713 P.2d 1197, 1200 (Alaska 1986))). Indeed, in Harrington, this Court found that there were two exceptions to the direct harm test: when the shareholder has sustained special injury, and when there is a separate duty owed to the shareholder. 781 So.2d at 1135 (quoting 12B William Meade Fletcher, Fletcher Cyclopedia of the Law of Private Corporations § 5911, at 458 (perm, ed., rev. vol. 2000)). Harrington, however, based its holding entirely on whether there was a special duty owed. Id. at 1136.

In short, the current Florida doctrine explaining which actions should be maintained directly and which must be brought derivatively is incredibly opaque, the application often varying from case to case depending on the facts. In our view, the only way to reconcile nearly fifty years of apparently divergent case law on this point is by holding that an action may be brought directly only if (1) there is a direct harm to the shareholder or member such that the alleged injury does not flow subsequently from an initial harm to the company and (2) there is a special injury to the shareholder or member that is separate and distinct from those sustained by the other shareholders or members. Peters, 175 So.2d at 56 (“[A] stockholder may bring a suit in his own right to redress ari injury sustained directly by him, and which is separate and distinct from that sustained by other stockholders.”); but see Harrington, 781 So.2d at 1185 (applying only the direct harm test and stating that a shareholder can still maintain a direct action if there is a special injury or specific and separate duty owed).

We also find that there is an exception to this rule under Florida law. A shareholder or member need not satisfy this two-prong test when there is a separate duty owed by the defendant(s) to the individual plaintiff under contractual or statutory mandates. Braun, 851 So.2d at 208. Thus, if the plaintiff has not satisfied the two-prong test (direct harm and special injury) or demonstrated a contractual or statutory exception, the action must be maintained derivatively on behalf of the corporation or company. Such a rule comports with general standards of corporate and LLC law by protecting individuals from the obligations arising out of their relationship to the company, while also allowing the parties greater freedom to contractually set their respective obligations.

B. Application of the Florida Test to the facts of this case

Turning now to the facts of the case before us, we must determine whether Dinuro’s claims allege both direct harm and special injury, and if not, whether the other members owe Dinuro a separate duty based on the operating agreement or Florida statutes. “We look to the body of the complaint to determine whether the injury is direct to the shareholder or to the corporation.” Karten, 23 So.3d at 841.

1. Direct Harm and Special Injury

Dinuro’s claims essentially allege that the other two members, Merici and Starmac (along with their individual owners), intentionally allowed the San Remo Entities to default on the Notes so that Merici and Starmac could purchase the loans at a discount and foreclose on the mortgaged properties, thereby depriving the San Remo Entities of their sole assets. The tortious interference claims and civil conspiracy claim largely arise out of these same allegations.

The fatal flaw with Dinuro’s claims is that, even assuming all allegations to be true, Dinuro’s injuries are merely as a result of the total devaluation of the San Remo Entities and are therefore an indirect harm. While it may arguably be true that Merici and Starmac have profited from their alleged misconduct or at least have suffered an injury less substantial than Dinuro because they have regained the properties as members of the SR Acquisitions entities while Dinuro has retained nothing, this analysis is germane only to the special injury inquiry, and cannot cure the failure to allege a direct harm, which is required to maintain a direct action under Florida jurisprudence. Therefore, Dinuro has suffered no direct harm, and cannot maintain a direct action on that basis.

2. Separate Duty Owed Under the Operating Agreement

As previously discussed, there is an exception to the general two-prong Peters test if some separate duty is owed from a defendant to the plaintiff shareholder or member, usually granted by contract or statute. Dinuro claims the defendants owe Dinuro a separate duty under the terms of the San Remo Entities’ operating agreements, and that a breach of the operating agreements is cognizable as a direct individual action. The terms of the operating agreements and the well-pleaded causes of action in the complaint, however, belie that contention.

An operating agreement is a contract. See Razin v. A Milestone, LLC, 67 So.3d 391, 396 (Fla. 2d DCA 2011). Thus, if the members owed a duty directly to Dinuro under the terms of the San Remo operating agreement, Dinuro could maintain a direct action under this exception. However, unlike a typical bilateral contract, where both signing parties owe duties to one another, operating agreements establish a more complicated and nuanced set of contractual rights and duties. Indeed, the effect of an operating agreement on members of the limited liability company and third parties is largely established by Chapter 608 of the Florida Statutes.

Section 608.423(1) of the Florida Statutes provides:

Except as otherwise provided in subsection (2), all members of a limited liability company may enter into an operating agreement, which need not be in writing, to regulate the affairs of the limited liability company and the conduct of its business, establish duties in addition to those set forth in this chapter, and to govern relations among the members, managers, and company. Any inconsistency between written and oral operating agreements shall be resolved in favor of the 'written agreement. The members of a limited liability company may enter into an operating agreement before, after, or at the time the articles of organization are filed, and the operating agreement takes effect on the date of the formation of the limited liability company or on any other date provided in the operating agreement. To the extent the operating agreement does not otherwise provide, this chapter governs relations among the members, managers, and limited liability company.

(emphasis added). This distinction is important because the signing parties to an operating agreement may very well decide that no individual member owes the other members any duties whatsoever, and that those duties are owed only to the company. When analyzing a claim for breach of an operating agreement, the precise terms of the agreement are critical.

Here, in support of its claim for breach of contract, Dinuro cites section 12 of the San Remo HS operating agreement, which outlines certain conduct that will constitute a default under the operating agreements and then explains the effects of a member’s default. Section 12.1 of the agreement explains what conduct will constitute a default; section 12.2 states that in the event of an uncured default the non-defaulting members may terminate the rights of the defaulting member and continue conducting business on behalf of the company; section 12.3 allows the non-defaulting members to purchase the membership shares of the defaulting member; and section 12.4 provides a catch-all provision providing additional remedies for non-defaulting members. Dinuro focuses specifically on sections 12.1 and 12.4 of the operating agreement, which state, in relevant part:

12.1 Event of Default. The following events shall constitute a default by a Member:
12.1.1 Violation of the provisions of this Agreement and failure to remedy the violation within sixty (60) days after written notice of the violation to the alleged defaulting Member from a non-defaulting Member and a reasonable opportunity to cure.
12.4 Additional Effects of Default. In the event of a Member’s default under this Agreement, the LLC and the Members may, at their election, pursue any and all remedies provided under this Agreement or any other remedies available at law or equity. The LLC and the Members shall not be deemed to waive or forfeit, by pursuit of remedies provided under this Agreement not considered liquidated damages, any amounts due to them as a result of another Member’s default under this Agreement. If non-defaulting Members of the LLC waive another Member’s specific default, the waiver shall not be deemed to extend to any other default of this Agreement. If the non-defaulting Members of the LLC refrain from enforcing any remedy available under this Agreement against a defaulting Member, they shall not be deemed to have waived the default.

(emphasis added). Dinuro believes the emphasized language in section 12.4 provides it a direct action against the other members for a breach of the terms of the operating agreement. We disagree.

The language in section 12.4 allows the company and the members to “pursue any and all remedies provided under this Agreement or any other remedies available at law or equity.” The specific remedies provided in sections 12.2 and 12.3 of the operating agreement are the ability to terminate the defaulting member’s interest in the company and the preemptive right to buy out the defaulting member’s shares. Allowing non-defaulting members to pursue “any other remedies available at law or equity” simply provides that the remedies articulated in the agreement are not exclusive, and that a non-defaulting member may pursue additional remedies consistent with Florida statutory and common law — it does not expand a member’s rights beyond those currently available in Florida law. Indeed, the remedies provided in section 12 track almost identically the remedies provided in section 608.4211(5), Florida Statutes (2011), which establishes the default effect of a member’s failure to contribute required funds.

Conspicuously missing from the operating agreement is any provision stating that the members shall be directly liable to each other for breaches of the terms of the operating agreement. Absent such a stipulation, we presume individual members are not liable for obligations or decisions of the company, as limited liability is one of the paramount reasons for forming an LLC. Section 608.4227 of the Florida Statutes specifically provides that members are typically shielded from individual liability for their involvement with an LLC unless the terms of the articles of organization or the operating agreement provide otherwise. See § 608.4227(1), Fla. Stat. (2011) (“Except as provided in this chapter, the members, managers, and managing members of a limited liability company are not liable, solely by reason of being a member or serving as a manager or managing member, under a judgment, decree, or order of a court, or in any other manner, for a debt, obligation, or liability of the limited liability company.”); § 608.4227(3) (“The member’s, managing member’s, manager’s, or other person’s duties and liabilities may be expanded or restricted by provisions in a limited liability company’s articles of organization or operating agreement.”). Dinuro has not and cannot show such an exception in the San Remo operating agreements, so it has not pled an individual cause of action against the other members of the company.

Because the operating agreements do not authorize suit against the members directly for a breach of their terms, and because Dinuro has not alleged a breach of the statutory duty of loyalty or care, no separate duty was owed specifically to Dinuro, and the trial court properly dismissed Dinuro’s causes of action for lack of standing in Dinuro’s individual capacity. These claims should have been brought as a derivative action.

CONCLUSION

As analyzed above, Florida law does not permit a member of an LLC to sue individually for damages arising out of its status as a member of a company unless the damages arise from a direct harm and special injury, or if there is a separate duty owed from the defendant to the plaintiff member. Dinuro has not satisfied either of these tests. Therefore, the remedy available at common law or in equity was for Dinuro to bring a derivative action on behalf of the company, which it has failed to do. Thus, the trial court was correct in dismissing Dinuro’s complaint.

Affirmed.

      . San Remo FC and San Remo HS have separate, but nearly identical operating agreements.

      . Dinuro has not appealed the dismissal of two additional counts for promissory estoppel (Count IV) and declaratory judgment (Count VI).

      . Some cases treat violations of contractual duties as “special injuries,” but we believe these to be separate inquiries for analytical purposes.

      . A separate duty is typically created by contract or by statute. Dinuro potentially may have been able to maintain a direct action for breach of a statutory fiduciary duty under section 608.4225, Fla. Stat. (2011), see 608.4225(1) (‘‘[E]ach manager and managing member shall owe a duty of loyalty and a duty of care to the limited liability company and all of the members of the limited liability company.”), however, Dinuro abandoned its breach of fiduciary duty claim early in the litigation. We therefore do not reach the issue of whether a direct claim may be brought for breach of fiduciary .duty under section 608.4225 in this opinion.

      . There is a separate operating agreement for San Remo FC, which is numbered differently, but the language in the two operating agreements is identical regarding the terms and remedies for default.

      . We find Dinuro’s remaining arguments on appeal without merit.


source: Caselaw Access Project

author: SCALES, J.

license: Public Domain

text:
    ALBANESE POPKIN HUGHES COVE, INC., Appellant, v. David SCHARLIN, et al., Appellees.
    Nos. 3D12-3429, 3D13-774.
    District Court of Appeal of Florida, Third District.
    July 9, 2014.

      Walton, Lantaff, Schroeder & Carson LLP, and John P. Joy, Sara M. Sandler, and Michael D. Ford, Ft.Lauderdale, for appellant.
    Hall, Lamb & Hall, P.A., and Andrew C. Hall, Adam J. Lamb, Miami, and Jocelyn S. Brown, for appellees.
    Before ROTHENBERG, LOGUE, and SCALES, JJ.
   SCALES, J.

This is a consolidated appeal from a final cost judgment and a final order awarding prejudgment interest in favor of Appellees, Plaintiffs below, David Scharlin, Amy Scharlin, Howglo, Inc., and A & DS Property Holdings, LLC (the Scharlins), and against Appellant, Defendant below, Alba-nese Popkin Hughes Cove, Inc. (APHCI). We reverse portions of the cost judgment because certain costs were outside the scope of the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions (the Guidelines), and we reverse the award of prejudgment interest because the lack of specificity in the jury’s verdict makes it impossible to calculate prejudgment interest.

I. Background

The Scharlins sued APHCI, alleging APHCI improperly constructed their home. Because of various construction defect damages, the Scharlins were forced to vacate their home on August 5, 2005, and did not move back in until April 30, 2009, when remediation was completed.

The scope of damages and defects alleged include, inter alia: water intrusion and mold throughout the house; defective HVAC system; improperly installed windows and doors; ineffective drainage system on balconies and deck; improperly installed sewage pipes and resulting plumbing problems; hazardous electrical conditions; cracks in ceiling, floor, and columns; unsealed openings in exterior walls; unsealed holes at the top of each column and resulting water intrusion into the columns; leaks in the roof and swimming pool; lack of waterproof installation in the stonework; exhaust, ventilation, moisture, and intrusion issues in the gas-flred hot water heaters; existence of a potentially hazardous condition whereby carbon monoxide could be pumped into the home via the gas-fired hot water tanks; and inoperative electrical outlets.

The Scharlins sought around $2.5 million for repair damages to the home itself and approximately $1.6 million in damages for their loss of use of the residence.

A jury trial ensued, and, on October 28, 2011, the jury, using a general verdict form, returned a verdict awarding the Scharlins damages of $589,789.46 for repairs to their home and $224,825 for loss of use, totaling $814,614.46 in compensatory damages. The jury determined APHCI was twenty-three percent at fault.

On December 2, 2011, the trial court entered a final judgment against APHCI in the amount of $187,361.33, which reflected a reduction in the verdict for the percentage of fault attributable to other parties as found by the jury.

After entry of the final judgment, the Scharlins filed a motion to tax costs, seeking a total of $391,362.93 in taxable costs. After an evidentiary hearing, the trial court awarded the Scharlins costs in six categories: depositions ($11,983.37); court reporter ($11,909.10); mediation ($3,178.13); filing fee, subpoena and witness fees ($10,049.88); expert witnesses ($247,977.03); and photocopies and exhibits ($65,118.28), for a grand total of $350,215.79.

The Scharlins also filed post-trial motions seeking prejudgment interest. The trial court entered an order awarding the Scharlins prejudgment interest in the amount of $76,194.68, the full amount requested.

APHCI appealed both the cost judgment and the prejudgment interest order, and this court consolidated APHCI’s appeals.

II. The Final Cost Judgment

A trial court’s award of costs is reviewed by appellate courts for an abuse of discretion. See Ocean Club Cmty. Ass’n v. Curtis, 935 So.2d 513, 517 (Fla. 3d DCA 2006). Because we conclude that portions of the award did not comport with the Guidelines, we partially reverse and remand the cost judgment.

a. Expert Witness Costs

The trial court awarded $21,915.73 to the Scharlins for expenses pertaining to Dan Tinney’s preparation of an expert report. Tinney did not testify at trial. Section III(B) of the Guidelines lists “[a]ny expenses relating to consulting but non-testifying experts” as a litigation cost that “should not be taxed as costs.” The Guidelines, 915 So.2d at 617. However, Section 1(C) of the Guidelines identifies “the costs of preparation of any court ordered report” as a litigation cost that “should be taxed.” Id. at 616. Tinney’s expert report was prepared in response to a court order, thus Tinney’s expenses for preparing that court-ordered report are taxable.

A review of Tinney’s invoices reveal Tin-ney charged $10,020 for his preparation of the report.

Tinney’s remaining charges, totaling $11,895.73 (i.e., three invoices for the following amounts: $195.70; $9,334.65; and $2,365.38), however, were for services unrelated to his preparation of the court ordered report. Thus, the costs awarded to the Scharlins for Tinney’s expert services should be reduced by $11,895.73.

b. Court Reporter Costs

In its final cost order, the trial court stated it was deleting charges for all hearing transcripts and trial transcripts. The trial court then awarded the Scharlins $11,909.10 in court reporter costs. When all the requested costs for hearing transcripts and trial transcripts are removed, however, the resulting figure is $9740. Accordingly, the trial court’s award of $11,909.10 appears to be the result of a mere calculation error. The costs awarded to the Scharlins for court reporter costs should be reduced by $2,169.10.

c.Mediation Costs

Pursuant to Section 11(A) of the Guidelines, mediation fees may be taxed as costs. The Guidelines, 915 So.2d at 617. The mediation services reflected in invoices dated March 9, 2011, and March 25, 2011 (totaling $675), were for the Schar-lins’ claim against the manufacturer of the windows in their home; this claim was for a separate lawsuit to which APHCI was not a party. Florida law permits the taxing of certain costs incurred by a prevailing party against a losing party. See § 57.041, Fla. Stat. (2013). APHCI was not the losing party in the underlying lawsuit for which the March 9, 2011, and March 25, 2011, mediation services were rendered. As such, the costs awarded to the Scharlins for these mediation services should be reduced by $675.

We affirm the cost judgment in all other respects.

III. The Prejudgment Interest Order

A trial court’s decision concerning entitlement to prejudgment interest is reviewed' de novo. See Reimbursement Recovery, Inc. v. Indian River Mem’l Hosp., Inc., 22 So.3d 679, 682 (Fla. 4th DCA 2009). Under Florida law, a prevailing party is entitled to prejudgment interest for liquidated damages. See Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212, 215 (Fla.1985). “Once a verdict has liquidated the damages as of a date eer-tain,” prejudgment interest is awardable based on a mathematical computation. Id.

“There are two prerequisites to the award of prejudgment interest as damages: (1) Out-of-pocket pecuniary loss, and (2) a fixed date of loss.” Underhill Fancy Veal, Inc. v. Padot, 677 So.2d 1878, 1380 (Fla. 1st DCA 1996). Here, the second perquisite is in dispute.

Of the approximately $2.5 million sought for repairs costs, the jury awarded the Scharlins $589,789.46. However, the verdict form did not identify a date of loss for the actual construction defect damages to which the jury believed the Scharlins were entitled, nor did the verdict identify which of the $2.5 million in sought damages were included in the award. Further, of the approximately $1.6 million sought for loss of use of their residence, the jury awarded the Scharlins $224,825. Again, the verdict form did not specify the dates for which the jury believed the Scharlins were entitled to be reimbursed for loss of use of their home.

The Scharlins argue the dates of loss for the repair costs are clearly established by the record as running from May 9, 2006 (the day they began remitting payments for repairs to their property), up until they remitted a total of $589,789.46 (the amount the jury awarded them) in payment for repairs to the home. In other words, the Scharlins argue they are entitled to prejudgment interest on the first $589,789.46 (out of the alleged $2.5 million) they paid for repairs to the home.

The Scharlins argue the dates of loss for their loss of use of the residence run from August 5, 2005 (the day they moved out of the house), up until February 12, 2006 (the day the reasonable rental value of their house would have reached a total of $224,825, as opined by their expert witness). In other words, the Scharlins argue they are entitled to prejudgment interest on the first six months and eight or nine days (out of the nearly four years) they were out of the home.

The jury simply found APHCI responsible for twenty-three percent of the $814,614.14 in total damages that the jury determined the Scharlins sustained.

Under the facts of this case, it simply cannot be determined from the record when the particular pecuniary losses awarded by the jury occurred. The Schar-lins alleged almost every portion of their home was damaged due to improper design and construction. And, according to the Scharlins, the damages, and associated repairs, began to occur within a few weeks of moving into the residence in April 2003, and continued over a period of several years. Additionally, it cannot be determined which of the alleged $2.5 million in repair expenses sought by the Scharlins the jury awarded them. Finally, the jury did not identify the time period associated with its loss of use award, nor is it evident from the record.

Hence, the only possible date that liquidated the Scharlins’ claim for prejudgment interest purposes was the date the jury rendered its verdict. Accordingly, we determine the Scharlins’ damages were liquidated by the jury’s verdict on October 28, 2011. See Perdue Farms Inc. v. Hook, 777 So.2d 1047, 1055 (Fla. 2d DCA 2001); Checkers Drive-In Rests., Inc. v. Tampa Checkmate Food Servs., Inc., 805 So.2d 941, 945 (Fla. 2d DCA 2001).

IV. Conclusion

In sum, we affirm the final cost judgment in all respects except, we reverse and remand the awards for expert witnesses, court reporter, and mediation. We reverse and remand the prejudgment interest award and direct the trial court to enter an award of prejudgment interest for the Scharlins to be calculated from the date of the jury verdict until the date of entry of the final judgment.

Affirmed in part, reversed in part and remanded.

      . In re Amends, to Unif. Guidelines for Taxation of Costs, 915 So.2d 612 (Fla.2005) (The Guidelines).

      . The Scharlins appealed the trial court’s final judgment and this court issued a per curiam affirmance on July 31, 2013. See Scharlin v. Albanese Popkin Hughes Cove, 117 So.3d 1100 (Fla. 3d DCA 2013) (table).

      . We recognize the trial judge who presided over the costs hearing was at a peculiar disadvantage because he was not the trial judge who presided over the three-and-one-half week jury trial.

      . The remaining charges were for Tinney’s performance of the following services: reviewing another expert’s report; preparing for a conference call; participating in a conference call; attending a meeting regarding the Scharlins’ residence; reviewing documents; preparing for a status meeting; reviewing work plan; and attending a status meeting.

      . We recognize that, like the trial judge who presided over the cost hearing, the trial judge who presided over the prejudgment interest hearing was also at a disadvantage because he was not the trial judge who presided over the three-and-one-half week jury trial.


author: PER CURIAM.

text:
    Shalone LEWIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1841.
    District Court of Appeal of Florida, Third District.
    July 9, 2014.
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, for appellant.
    Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for appellee.
    Before SALTER, LOGUE and SCALES, JJ.
   PER CURIAM.

Shalone Lewis appeals his convictions and sentences on revocation of probation. We affirm the convictions as none of the issues raised on appeal have merit. However, we remand the case to the trial court to correct the defendant’s sentences to impose concurrent, not consecutive, habitual violent felony offender sentences.

The Florida Supreme Court’s recent opinion in Cotto v. State, 139 So.3d 283 (Fla.2014), reiterated its holding in Hale v. State, 630 So.2d 521, 525 (Fla.1993), that it is error to impose consecutive sentences under the habitual violent felony offender statute for convictions that arose from a single criminal episode. These sentences are illegal and can be remedied on plenary appeal, regardless of the defendant’s failure to preserve the issue. Lipford v. State, 736 So.2d 62 (Fla. 1st DCA 1999); Jordan v. State, 754 So.2d 876 (Fla. 1st DCA 2000). Because this error is evident on the face of this record, we remand the case for the trial court to impose concurrent sentences. The defendant need not be present.

Affirmed and remanded.


author: WELLS, Judge.

text:
    Noel TAYLOR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-3314.
    District Court of Appeal of Florida, Third District.
    July 9, 2014.

      Carlos J. Martinez, Public Defender, and Harvey J. Sepler and Maria E. Laure-do, Assistant Public Defenders, and Jeffrey Paul Desousa, Certified Legal Intern, for appellant.
    Pamela Jo Bondi, Attorney General, and Brent J. Kelleher, Assistant Attorney General, for appellee.
    Before WELLS, EMAS and SCALES, JJ.
   WELLS, Judge.

Noel Taylor appeals from his convictions and sentences for indecent exposure and assault. We find no merit in the arguments raised with regard to his conviction and sentence on the assault charge and therefore affirm the conviction and sentence on that count without discussion. However, we reverse Taylor’s conviction and sentence for indecent exposure because the evidence adduced below, when viewed in a light most favorable to the State, was insufficient to demonstrate that Taylor exposed or exhibited his sexual organs in a place intended or designed to be frequented or resorted to by the public. See § 800.03, Fla. Stat. (2012) (in pertinent part, making it “unlawful to expose or exhibit one’s sexual organs in public or on the private premises of another, or so near thereto as to be seen from such private premises”); Fla. Std. Jury Instr. (Criminal) 11.9 (defining a “public place” as “any place intended or designed to be frequented or resorted to by the public”); Basulto-Rodriguez v. State, 95 So.3d 403, 406 n. 5 (Fla. 3d DCA 2012) (“We review de novo the trial court’s denial of a motion for JOA, to determine solely whether the evidence is legally sufficient. In reviewing the denial of the motion, we consider the evidence and all reasonable inferences in a light most favorable to the State as the non-moving party.”) (internal citations omitted.); A.S.F. v. State, 70 So.3d 754, 756 (Fla. 4th DCA 2011) (same).

Accordingly, Taylor’s convictions and sentences are affirmed in part and reversed in part.


author: LaROSE, Judge.

text:
    Irina ROMANYUK, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-4697.
    District Court of Appeal of Florida, Second District.
    July 9, 2014.

      Richard Ruhl of Ruhl Law, P.A., Port Charlotte, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appel-lee.
   LaROSE, Judge.

Irina Romanyuk appeals her conviction and thirty-month prison sentence for possession of a controlled substance and possession of paraphernalia. See §§ 893.13(6)(a), .147, Fla. Stat. (2011). The trial court erroneously denied her request for a prescription defense jury instruction. Consequently, we reverse.

Ms. Romanyuk planned to run some errands with her husband and her friend Sue Motes. Ms. Motes drove them in her car. They stopped first at the library. Ms. Motes then drove to Wendy’s, where a man came to her car window; she gave him five oxycodone pills in exchange for one hundred dollars. Apparently, Ms. Ro-manyuk was not paying attention and did not see the exchange.

To Ms. Motes’ surprise, the man who purchased the pills was undercover officer Corporal Clemens. When he signaled for other officers to make an arrest, Ms. Motes sped away. Ms. Motes drove to Ms. Romanyuk’s home. Later, Ms. Motes decided to turn herself in.

Ms. Motes and Ms. Romanyuk drove to the bail bondsman’s office in Ms. Motes’ car. Ms. Romanyuk sat in the car and waited for Ms. Motes. Several minutes later, Sergeant Maler, part of the original take-down unit, approached the car and asked Ms. Romanyuk to step out. She complied. In response to Sergeant Maler’s inquiry, she said she had oxycodone in her purse. Sergeant Maler searched her purse, finding three unlabeled bottles containing blue capsules, four cell phones, and Ms. Romanyuk’s identification. Corporal Clemens arrived at the scene and confiscated the pills, phones, and identification. Two of the bottles contained oxycodone. Ms. Romanyuk said she did not have a prescription but was holding the pills for her husband, who did. Corporal Clemens arrested Ms. Romanyuk.

At trial, Ms. Romanyuk sought to introduce into evidence a printout of a pharmacy record of the prescription transactions and receipts attached to the husband’s prescription bags. The trial court ruled that they were inadmissible without a pharmacy employee introducing them as business records. The trial court would not let Ms. Romanyuk testify, or her counsel argue, that her husband had a valid prescription for the oxycodone. The trial court did allow Ms. Romanyuk to testify and trial counsel to argue that Ms. Romanyuk frequently picked up these pills from the pharmacy for her husband and often saw him taking them.

Ms. Romanyuk requested a prescription defense jury instruction. The trial court refused the request, ruling that the defense was speculative. The jury convicted Ms. Romanyuk. On appeal, Ms. Romanyuk argues that the trial court abused its discretion by refusing to instruct the jury on the prescription defense when the pills allegedly belonged to her husband, who had a prescription. This was her only defense.

Where the trial court fails to instruct the jury on a crucial defense, “[a] defendant is deprived of a fair trial if the error divests the defendant of his or her ‘sole, or ... primary, defense strategy’ and that defense is supported by evidence adduced at trial that could not be characterized as ‘weak.’ ” McCoy v. State, 56 So.3d 37, 40 (Fla. 1st DCA 2010) (quoting Martinez v. State, 981 So.2d 449, 455 (Fla.2008)); accord Ramirez v. State, 125 So.3d 171, 176 (Fla. 4th DCA 2013). This was Ms. Romanyuk’s sole defense; its apparent weakness stems from the trial court’s restriction of testimony and argument relating to the husband’s possession of a valid prescription. Generally, the trial court allows a defendant to testify that there is a valid prescription, even where the defendant does not have a pharmacist introduce the prescription as a business record or a doctor testify to having prescribed the drugs; the jury may then decide whether to believe that defense. See, e.g., Hardy v. State, 140 So.3d 1016, 1018, at *1 (Fla. 1st DCA May 14, 2014) (“The trial court ruled [defendant’s girlfriend] could testify that she had been given a prescription for Methadone and that it would be up to the jury to decide whether to believe her testimony if the prescription could not be produced.”); Ramirez, 125 So.3d 171 (reversing for failure to instruct jury on prescription defense; mother testified she had valid prescription; no indication that prescription was introduced into evidence); Ayotte v. State, 67 So.3d 330 (Fla. 1st DCA 2011) (reversing for failure to instruct jury on prescription defense where defendant claimed he held pills for his girlfriend who had a valid prescription; no indication that prescription was entered into evidence; State did not dispute validity of prescription); Glovacz v. State, 60 So.3d 423 (Fla. 1st DCA 2011) (reversing for failure to instruct jury on prescription defense where defendant claimed to have valid prescription; State did not refute that claim; no indication that prescription was entered into evidence); McCoy, 56 So.3d 37 (fundamental error to fail to instruct jury on prescription defense where defendant and husband testified husband had prescription; no indication that prescription was entered into evidence).

Had the trial court allowed Ms. Roman-yuk to testify, and her counsel to argue, that her husband for whom she was holding the pills held a valid prescription, the evidence could not be characterized as more “weak” than the above-cited cases where convictions were reversed for failure to instruct on the prescription defense even though the prescription was not in evidence.

The trial court should have given the requested jury instruction. We reverse and remand for a new trial.

Reversed and remanded.

KELLY and KHOUZAM, JJ., Concur.

      . A prescription defense instruction is necessary where there is evidence that the defendant was holding a controlled substance as agent of another individual to whom it was prescribed. McCoy v. State, 56 So.3d 37, 39 (Fla. 1st DCA 2010). The standard prescription defense jury instruction provides, in pertinent part, as follows:
      If you find the defendant proved by a preponderance of the evidence that [he] [she] lawfully obtained the controlled substance from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice, you should find [him][her] not guilty of [possession of a controlled substance] [trafficking via possession]. If the defendant did not prove by a preponderance of the evidence that [he][she] lawfully obtained the controlled substance from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice, you should find [him] [her] guilty, if all the elements of the charge have been proven beyond a reasonable doubt.
      Fla. Std. Jury Instr. (Crim.) 3.6(n).


author: SLEET, Judge.

text:
    Matthew C. BLACKERT, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-3325.
    District Court of Appeal of Florida, Second District.
    July 9, 2014.

      Melissa Montle and Seth E. Miller of the Innocence Project of Florida, Inc., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   SLEET, Judge.

Matthew Blackert appeals the partial denial of his motion for postconviction DNA testing filed pursuant to Florida Rule of Criminal Procedure 3.853. Because the postconviction court’s denial of the motion as to the victim’s clothing is not supported by competent, substantial evidence, we reverse that portion of the order. However, we affirm without comment the postconviction court’s holding that the testing should be conducted by the Florida Department of Law Enforcement (FDLE).

After a jury convicted Blackert of five counts of capital sexual battery, the trial court sentenced him to five concurrent life sentences. At trial, both parties stipulated that the DNA results from the presumptive testing initially conducted on the victim’s clothing and the assault kit were negative for DNA foreign to the victim. The State’s only evidence implicating Blac-kert in the sexual battery was the six-year-old victim’s identification of “Uncle Matt” as her assailant.

In his rule 3.853 motion, Blackert sought DNA testing of the sexual assault kit and the clothing collected from the victim. He argued that additional DNA testing of the victim’s clothing was necessary because semen may still exist on the victim’s clothing despite the pretrial negative presumptive tests and that testing of that semen would produce a DNA profile indicating the genetic identity of the perpetrator. The postconviction court granted the motion as to the sexual assault kit, but denied the motion as to the victim’s clothing. The court found that the clothing was not likely to yield evidence that would exonerate Blackert because “the record reflected that there may have been innocent reasons for the presence of other male biological material on the clothing,” and that there may be a chain of custody issue as to the clothing.

Under rule 3.853, “DNA testing procedures should be allowed if the results would create a ‘reasonable probability that the defendant would have been acquitted if the DNA evidence had been admitted at trial.’” Dubose v. State, 113 So.3d 863, 864 (Fla. 2d DCA 2012) (quoting Knighten v. State, 829 So.2d 249, 252 (Fla. 2d DCA 2002)). We agree with the circuit court’s finding that the presence of foreign DNA alone on the victim’s clothes would shed no light on Blackert’s guilt or innocence; both parties agree that the victim had innocent contact with the other male occupants of Blackert’s home and that her clothing could contain their DNA. However, we agree with Blackert that the presence of semen on the victim’s clothing could only belong to her attacker. See Cardona v. State, 109 So.3d 241, 247 (Fla. 4th DCA 2013) (explaining that DNA testing of physical evidence that could reasonably belong to the perpetrator and that was linked to the alleged crimes was required).

The record indicates that the victim wore the clothing before, during, and after the sexual battery. Blackert’s expert testified that the negative results of the presumptive tests conducted by FDLE at the time of Blackert’s trial are not conclusive and that STR and mini STR DNA testing could pinpoint DNA not identified by the presumptive tests. The expert also testified that there was a likelihood that semen would be found on the clothing given the facts of this case. Therefore, the circuit court’s finding that testing of the victim’s clothing was not likely to produce evidence that would result in acquittal was erroneous.

At the evidentiary hearing on Blac-kert’s motion, the parties noted that the evidence bag containing the victim’s clothing was slightly torn. However, neither side raised a chain of custody issue and Blackert’s expert testified that contamination was unlikely to affect testing of the clothing. Therefore, the postconviction court’s finding that there was a potential chain of custody issue as to the victim’s clothing was not supported by competent, substantial evidence. See id. at 245.

Accordingly, we reverse and remand for DNA testing of the victim’s clothing.

Affirmed in part, reversed in part, and remanded with instructions.

ALTENBERND and WALLACE, JJ., Concur.


text:
    Henri C. LaFRANCE and Marie LaFrance, Appellants, v. US BANK NATIONAL ASSOCIATION, as trustee for CSFB Home Equity Pass-Through Certificates Series 2006-08, Appellee.
    No. 4D13-102.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2014.

      S. Tracy Long of the Law Offices of S. Tracy Long, P.A., Boca Raton, for appellants.
    Jessica Zagier Wallace of Carlton Fields, P.A., Miami, and Michael K. Winston, Dean A. Morande of Carlton Fields, P.A., West Palm Beach, for appellee.
   PER CURIAM.

Appellants appeal a final summary judgment of mortgage foreclosure in favor of appellee. Because appellee failed to rebut appellants’ affirmative defense of lack of standing, we reverse.

Henri C. LaFrance and Marie LaFrance (“appellants”) executed a promissory note and mortgage on the subject property with lender Accredited Home Lenders, Inc. (“AHL”) in 2006. In 2009, U.S. Bank National Association, as Trustee for CSFB Home Equity Pass-Through Certificates Series 2006-8 (“US Bank”), filed a mortgage foreclosure complaint against appellants as “the holder” of the note and mortgage. A copy of the unendorsed note was attached to the complaint. Appellants filed an answer with affirmative defenses, including that U.S. Bank lacked standing.

US Bank moved for summary judgment. In support thereof, it filed affidavits of representatives and records from two loan servicing providers. Over three-and-a-half years after filing its complaint, U.S. Bank also filed the original note with an allonge bearing an undated endorsement in blank signed by an “Assistant Secretary” of AHL, the original lender. The trial court granted final summary judgment in favor of U.S. Bank.

“The standard of review of an order granting summary judgment is de novo.” McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 172 (Fla. 4th DCA 2012). Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c).

Appellants assert that the trial court erred in entering summary judgment because there was a genuine issue of material fact as to whether U.S. Bank had standing to file their complaint. US Bank responds that the “authenticated” business records of the servicing providers demonstrate that it had standing.

“A crucial element in any mortgage foreclosure proceeding is that the party seeking foreclosure must demonstrate that it has standing to foreclose.” McLean, 79 So.3d at 173. “Whether a party is the proper party with standing to bring an action is a question of law to be reviewed de novo.” Elston/Leetsdale, LLC v. CWCapital Asset Mgmt. LLC, 87 So.3d 14, 16 (Fla. 4th DCA 2012) (citation omitted). Standing to foreclose is determined at the time the lawsuit is filed and can be demonstrated by the filing of an assignment or the original note with a special endorsement in favor of the plaintiff or a blank endorsement. McLean, 79 So.3d at 173. A “plaintiffs lack of standing at the inception of the case is not a defect that may be cured by the acquisition of standing after the case is filed” and cannot be established “retroactively by acquiring standing to file a lawsuit after the fact.” Id. (citation omitted).

Here, over three-and-a-half years after filing its complaint with a photocopy of the unendorsed note, U.S. Bank filed the original note containing an undated endorsement in blank. The undated endorsement fails to prove that U.S. Bank was the owner or holder of the note at the time of filing the complaint. Further, none of the affidavits filed in support of summary judgment specifically assert that U.S. Bank obtained possession of the endorsed note prior to the date of the filing the complaint. Finally, the loan servicing records provided by the affiants, without any explanation of their significance, likewise failed to affirmatively prove that U.S. Bank was the owner and holder of the note prior to the filing of the complaint.

Because the affidavits and records filed in support of summary judgment do not support a finding that U.S. Bank was the holder of the note with a proper endorsement in blank at the time the complaint was filed, a genuine issue of material fact exists as to whether U.S. Bank had standing at the time of suit. On the record presented, it is possible that U.S. Bank did not obtain standing to foreclose until after it initiated the lawsuit. Thus, the trial court erred in entering the final summary judgment of foreclosure in favor of U.S. Bank. McLean, 79 So.3d at 173; see also Zimmerman v. JPMorgan Chase Bank, Nat’l Assoc., 134 So.3d 501, 502 (Fla. 4th DCA 2014); Gonzalez v. Deutsche Bank Nat’l Trust Co., 95 So.3d 251, 254 (Fla. 2d DCA 2012). We therefore reverse the final judgment and remand for further proceedings.

Reversed and, remanded.

LEVINE, CONNER and KLINGENSMITH, JJ., concur.


author: DAMOORGIAN, C.J.

text:
    STATE of Florida, Appellant, v. J.C., a child, Appellee.
    No. 4D12-4176.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2014.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine Germanowiez, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Karen Ehrlich, Assistant Public Defender, West Palm Beach, for appellee.
   DAMOORGIAN, C.J.

In this appeal, the State challenges the trial court’s order dismissing its petition for delinquency. We reverse and hold that the trial court impermissibly relied on section 985.0301(6), Florida Statutes (2011), to dismiss the petition before the adjudicatory hearing. See State v. W.D., 112 So.3d 702, 703 (Fla. 4th DCA 2013).

By way of background, the State filed a delinquency petition against J.C. in August of 2011, based on allegations that he punched another student in the school cafeteria. At the hearing on the petition more than a year later, the State informed the court that J.C. was living at a family shelter in New York. Defense counsel moved to dismiss the petition pursuant to section 985.0301(6), which permits the court “at any time [to] enter an order ending its jurisdiction over any child.” See § 985.0301(6), Fla. Stat. (2011). The trial court granted the motion over the State’s objection and dismissed the delinquency petition.

On appeal, the State argues that the trial court erred in dismissing the petition pursuant to our holding in W.D., 112 So.3d 702. There, we held that section 985.0301(6) allows the trial court to end its jurisdiction over a child only after the initial adjudicatory hearing. Id. at 704. The public defender concedes error based on W.D. Accordingly, we hold that the trial court impermissibly relied on section 985.0301(6) to terminate its jurisdiction over J.C. and “put an end to the prosecution before the case ever reache[d] adjudication on the merits.” See id. By dismissing the delinquency petition, the trial court violated the separation of powers doctrine by encroaching on the state attorney’s absolute authority to decide where and how to prosecute this case. See id. at 704-05. Thus, we reverse and remand the trial court’s order dismissing the State’s delinquency petition.

Reversed and Remanded.

FORST, J„ and HANZMAN, MICHAEL, Associate Judge, concur.


text:
    Arnold Kyle NICHOLSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-264.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2014.

      Arnold Kyle Nicholson, Florida City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the trial court’s denial of appellant’s motion for additional jail credit and remand for the award of the proper amount of credit. Appellant was initially arrested for defrauding an innkeeper and obstructing an officer without violence. He spent 35 days in jail and was released when the State failed to file formal charges. The state, however, subsequently charged him with grand theft, and he was again arrested. Ultimately, he entered a plea to the grand theft charge and was sentenced to 61 days “time served” which included all the time he served in jail since his initial arrest for defrauding an innkeeper. This time-served sentence was followed by two years of probation.

Appellant violated probation, and the court ultimately sentenced him to 18 months in prison with credit for only 35 days for time spent in jail before sentencing following his arrest for the grand theft charge. Appellant’s motion establishes that he is entitled to the 61 days of jail credit previously awarded as a “time served” sentence in this case and any additional time served in jail before the revocation of probation and sentence. Accordingly, we reverse and remand for the trial court to award the proper amount of credit.

Reversed and remanded.

MAY, CIKLIN and LEVINE, JJ, concur.


text:
    PGA MEXX, LLC d/b/a Cabo Flats, Petitioner, v. Trent MAYER, Respondent.
    No. 4D14-401.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2014.
    Richard F. Della Fera and Joshua M. Entin of Entin & Della Fera, P.A., Fort Lauderdale, for petitioner.

      Stephan A. LeClainche of Babbitt Johnson Osborne & LeClainche, P.A., West Palm Beach, for respondent.
   PER CURIAM.

PGA MEXX, LLC d/b/a Cabo Flats petitions for a writ of certiorari seeking review of an order denying its emergency motion for stay. Based upon an order of a Delaware chancery court enjoining actions involving petitioner’s insurer until October 7, 2014, we grant the petition and direct the trial court to stay all proceedings in this case. See Am. Bonding Co. v. Coastal Metal Sales, Inc., 679 So.2d 1250 (Fla. 2d DCA 1996).

Petition Granted with Directions.

MAY, CIKLIN and KLINGENSMITH, JJ., concur.


text:
    Joan HERRING, Appellant, v. Christopher RINALDI, Ralph Rinaldi and Mercury Insurance Company of Florida, Appellees.
    No. 4D12-3358.
    District Court of Appeal of Florida, Fourth District.
    July 9, 2014.
    Edmund Gonzalez of Gonzalez & Henley P.L., West Palm Beach, for appellant.
    Neal Rose of Bernstein, Chackman, Liss and Rose, Hollywood, for appellee, Ralph Rinaldi.
   On Confession of Error

PER CURIAM.

The appellee concedes that this case should be reversed and remanded based on the Florida Supreme Court’s opinion in Christensen v. Bowen, 140 So.3d 498 (Fla.2014).

Reversed and remanded.

GERBER, CONNER and KLINGENSMITH, JJ., concur.


author: VILLANTI, Judge.

text:
    Kevin Lee KYNE, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-4278.
    District Court of Appeal of Florida, Second District.
    July 11, 2014.

      Howard L. Dimmig, II, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Kevin Lee Kyne appeals his conviction and sentence for one count of second-degree murder and the revocation of his probation. Because the trial court improperly allowed the State to introduce extrinsic evidence of Mr. Kyne’s prior violent disputes with his stepfather, we reverse his murder conviction and remand for a new trial. This ruling also requires the trial court to reconsider the revocation of Mr. Kyne’s probation.

Diane Kyne was strangled and smothered in her bed on the afternoon of August 15, 2010. The only two individuals home with her at the time were her son, Kevin, and her husband and Kevin’s stepfather, William. The first call to 9-1-1 came from Kevin, in which he reported that William had killed Diane and was then trying to kill him. The second call to 9-1-1 came from William, who reported that Kevin had killed Diane and was now fighting with him. Kevin and William were both questioned by the police in connection with Diane’s death, and each gave several varying statements. In those statements, Kevin and William contradicted themselves and each other in numerous ways. Further, each of the statements given by each of the men were somewhat inconsistent with the physical evidence. Ultimately, however, the police charged Kevin with first-degree murder for the death of his mother.

Prior to trial, Kevin moved in limine to exclude evidence of prior violent acts he had allegedly committed in the family home. He conceded that evidence concerning his somewhat volatile relationship with Diane was necessary for the State to present an orderly, intelligible account of the case. That evidence was relevant to show the extent of Kevin’s anger, and its physical manifestations, when he and his mother disagreed, and it established the context of the crime itself. Further, it provided a chronology of the events leading up to the crime that explained why Kevin might kill Diane over the use of a computer. However, Kevin sought to exclude any evidence of prior violent disputes between himself and William because such prior disputes were irrelevant to the issues in the murder case.

In fact, the State did not even argue at the pretrial hearing that the prior violent disputes between Kevin and William were relevant to any specific issue in the case. Instead, it argued that the evidence was inextricably intertwined with the facts of the case and necessary to allow the jury to understand “the dynamics of the household.” To that end, the .State argued:

One other aspect of that that needs to come out, Kevin had the pattern of calling the police himself even on situations where he was the one causing the problems, and the police would come. And this won’t come out in this detail. I’m just giving you the background. But the police would come out and basically say, We’re leaving. We’re gonna arrest you if we have to come back here again.
You know, he’d goad his father. Go ahead, hit me so I can call the police. You know, you’re going to jail now. Then he would call the police, and nobody — you know, nothing would happen because he was the problem. Okay?
So that’s very important because in this case, as I think you know, after William Kyne discoveries [sic] Bill — I mean discovers Kevin choking or killing the mom, they fight, and he’s trying to hold on to him. They go out in the front yard, and Kevin’s on the cell phone within minutes calling the police saying, My dad just killed my mom. Okay? Now, that’s — that’s a pretty great piece of evidence for the Defense—
THE COURT: Uh-huh.
THE STATE: — okay, assuming that the person doesn’t have a pattern of doing that kind of behavior. And the jury needs to know that that’s part of his basis that he does that because that puts a little bit different spin on it.

In response to this argument, Kevin pointed out that the State had not filed a notice of intent to use evidence of prior bad acts as required by section 90.404(2)(d), Florida Statutes (2012). In turn, the State argued that it need not comply with the requirements of section 90.404(2) because it was not offering the evidence under that section but instead was offering it solely as inextricably intertwined with the events of the day. When the court asked for an example of the evidence the State intended to introduce, the State explained:

Jeremy [William’s older son] was around for the incident of maybe a week or two weeks before where Bill was — I mean where Kevin was goading Bill into trying to hit him so [he] could call the police. All right? And I think Bill did push him to get him out of the way, and I believe the police were called that day.
And so that’s — not only is that close in time, but it also illustrates this, you know, behavior by him of wanting to call the police and, you know, trying to goad Bill into doing these things. And so Jeremy saw that happen, and I’m gonna ask him about that. Not, you know, I don’t care who — it’s not whether he did a bad act or didn’t do a bad act. It has to do with him using the police and being accustomed to making that happen, I’m gonna call, and goading Bill into these scenarios.

Kevin again argued that this type of evidence was not inextricably intertwined with the facts of the case because it was wholly irrelevant to the issue of whether he killed his mother. Nevertheless, the court ruled that the evidence of Kevin’s prior violent disputes with William would be admissible; however, the State was precluded from calling police officers to testify about the incidents and from making the evidence a feature of the trial.

In this appeal, Kevin contends that the trial court abused its discretion when it permitted the State to introduce extrinsic evidence of his prior violent disputes with William as being inextricably intertwined with the events of Diane’s murder. We are compelled to agree.

Evidence of collateral crimes, wrongs, or other acts is “inextricably intertwined” with evidence of the crime at issue “if the evidence is necessary to (1) adequately describe the deed; (2) provide an intelligent account of the crime(s) charged; (8) establish the entire context out of which the charged crime(s) arose; or (4) adequately describe the events leading up to the charged crime(s).” Ballard v. State, 66 So.3d 912, 918 (Fla.2011) (citing Dorsett v. State, 944 So.2d 1207 (Fla. 3d DCA 2006)). Evidence is also inextricably intertwined if it is necessary for the State “to present an orderly, intelligible case.” Tumulty v. State, 489 So.2d 150, 153 (Fla. 4th DCA 1986). “It is admissible ... because ‘it is a relevant and inseparable part of the act which is in issue.... [I]t is necessary to admit the evidence to adequately describe the deed.’ ” Griffin v. State, 639 So.2d 966, 968 (Fla.1994) (quoting Charles W. Ehrhardt, Florida Evidence § 404.17 (1993 ed.)).

Here, however, nothing about the evidence of Kevin and William’s prior violent disputes was necessary to adequately describe Diane’s murder or the context out of which it arose, and the State in no way needed that evidence to adequately describe relevant events leading up to the murder or to present an orderly and intelligible account of the crime. Whether Kevin baited his stepfather into hitting him two weeks before Diane’s murder is simply unnecessary and wholly unconnected to a determination of whether Kevin smothered Diane. Instead, that evidence amounted to nothing more than inadmissible testimony concerning Kevin’s bad character. Therefore, because the evidence of the prior violent disputes between Kevin and William was not inextricably intertwined with the facts of the charged offense, the trial court abused its discretion in admitting that evidence over Kevin’s objection. See Johnson v. State, 969 So.2d 938, 949 (Fla.2007) (noting that a trial court’s “ruling constitutes an abuse of discretion if it is based ‘on an erroneous view of the law or on a clearly erroneous assessment of the evidence’ ” (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990))). And the improper admission of this evidence necessitates a new trial.

To support the trial court’s ruling, the State initially argued that this issue was not properly preserved for review because Kevin did not object when the State offered the evidence during trial, citing Correll v. State, 523 So.2d 562, 566 (Fla.1988). However, the State’s argument ignores the plain language of section 90.104(1)(b), Florida Statutes (2012), added in 2003, which provides that when the court has made a definitive pretrial ruling on the record either admitting or excluding evidence, “a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” Here, the trial court made a definitive pretrial ruling on the issue, thus obviating the need for Kevin to make further objections. And his attempt during closing arguments to mitigate the damage caused by the erroneous admission of this evidence does not constitute a waiver of his timely objection. Hence, the State’s preservation argument is not well-taken.

In the alternative, the State also urged this court to consider whether there was a tipsy coachman basis for affirming Kevin’s conviction despite the erroneous admission of this evidence. After a thorough analysis of the entire record, we conclude that there is not. Although the disputed evidence might conceivably have been admissible under the Williams rule as evidence of a prior wrong or act, the State did not file the pretrial notice required under section 90.404(2)(d)(l). Further, the State never argued in the trial court that the evidence was admissible under the Williams rule, and in fact specifically argued that it did not constitute Williams rule evidence. Therefore, this court may not use the tipsy coachman doctrine to affirm on this basis. See, e.g., Robertson v. State, 829 So.2d 901, 908 (Fla.2002) (holding that the appellate court could not use the tipsy coachman doctrine to hold that evidence was admissible under the Williams rule when the State never filed the required Williams rule notice and never argued in the trial court that the evidence was admissible on that basis).

Moreover, it appears from the trial transcript that the State actually used the disputed evidence to impeach Kevin’s grand jury testimony and his statements to police that everything was fine between him and his stepfather. However, while the State may impeach a defendant who chooses to testify just as it can impeach any other witness, impeachment on a collateral issue through the use of extrinsic evidence is impermissible. See, e.g., Foster v. State, 869 So.2d 748, 745 (Fla. 2d DCA 2004); Lawson v. State, 651 So.2d 713, 715 (Fla. 2d DCA 1995) (“[A] witness’ answer during cross-examination to a non-material collateral matter is conclusive and cannot be impeached by normal means of impeachment, including contradictory testimony by another witness.”). The question of whether an issue is “collateral” is answered by determining “whether the proposed testimony can be admitted into evidence for any purpose independent of the contradictions.” Lawson, 651 So.2d at 715. Here, testimony from various witnesses on the issue of whether Kevin and William had prior violent disputes could not be admitted in the trial on Diane’s murder for any purpose other than to impeach Kevin’s statements. Therefore, the issue was purely collateral, and extrinsic evidence of the prior violent disputes between Kevin and William was simply inadmissible. Hence, we may not affirm on this basis either.

Finally, the State contends that any error in admitting the evidence was harmless. We disagree. There were three people in the home at the time of the murder — William, Kevin, and Diane. Diane was strangled and smothered by either William or Kevin. Each blamed the other. William contradicted himself in his various statements to law enforcement, as did Kevin. And the physical evidence did not rule out either as the perpetrator. Hence, the jury was given the choice to believe one of two impeached witnesses— either William or Kevin. Under these circumstances, we cannot say that there is no reasonable possibility that the erroneous admission of this evidence contributed to the conviction. See State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986). Therefore, because the evidence was improperly admitted and because this court cannot say that its improper admission was harmless, we reverse Kevin’s conviction and remand for a new trial.

Our reversal of Kevin’s murder conviction also requires us to reverse the revocation of his probation. The order of revocation finds Kevin to be in -violation of both condition 5, based on his conviction for Diane’s murder, and condition 7, based on a positive drug test. Because it is unclear from the record whether the trial court would have revoked Kevin’s probation based solely on the violation of condition 7, we must reverse the order revoking Kevin’s probation. On remand, the trial court should reconsider whether to revoke Kevin’s probation in light of the reversal of his murder conviction and, if so, the appropriate sentence to be imposed.

Reversed and remanded with directions.

ALTENBERND and LaROSE, JJ., Concur.

      . Because the parties are all family members, we use their first names to avoid confusion.

      . See Robertson v. State, 829 So.2d 901, 906 n. 2 (Fla.2002) (explaining the origin of the tipsy coachman doctrine).

      . Williams v. State, 110 So.2d 654 (Fla.1959).