author: EMAS, J.

text:
    ORTHOPEDIC CARE CENTER, Appellant, v. Devon PARKS, et al., Appellees.
    No. 3D14-988.
    District Court of Appeal of Florida, Third District.
    Nov. 26, 2014.

      Fuerst Itleman David and Joseph and Christopher M. David; Kula & Samson and Elliott Kula, W. Aaron Daniel and Daniel M. Samson, Miami, for appellant.
    Gordon & Doner and Cassandra Castel-lano-Lombard and Gary M. Paige, Davie; Burlington & Rockenbach and Adam J. Richardson, West Palm Beach, for appel-lees.
    Before WELLS, EMAS and LOGUE, JJ.
   EMAS, J.

Appellant Orthopedic Care Center (“Orthopedic”), appeals an order denying its motion for protective order. For the reasons that follow, we affirm the trial court’s order.

FACTS

Appellee Devon Parks (“Parks”) filed a personal injury action against Edna Gutierrez (“Gutierrez”) in August 2012, alleging that Gutierrez was negligent and caused a car accident between the two, resulting in injuries to Park. Gutierrez hired Dr. Rolando Garcia, a physician with Orthopedic (and also a shareholder and member of Orthopedic), to conduct a compulsory medical examination of Parks.

Thereafter, Parks noticed the deposition duces tecum of Dr. Garcia for March 7, 2014. In items 16 and 17 of the schedule attached to the notice, Parks asked Dr. Garcia to bring to the deposition:

16. Any and all records which identify and document your trial testimony and deposition testimony for cases involving worker’s compensation and personal injury claims during the last five (5) years. If no list of such cases is in existence and if you do not wish to create such a list, please produce all calendars, diaries, ledgers, indexes, and such other records or documents which you have in your possession or have access to which reveal cases in which you have provided testimony in deposition, arbitration, mediation, or at trial for any cases in the last five (5) years.
17. Any and all records which identify and document any and all CME, IME or examinations of any type which you have conducted during the last five (5) years on behalf of insurance companies, law firms, referral services, or other entities on their behalf. If no list of such CME, IME or examinations are in existence and if you do not wish to create such a list, please produce all calendars, diaries, ledgers, indexes and such other records or documents which you have in your possession or have access to which review all CME, IME or examinations of any type in which have you have conducted during the last five years.

At his deposition, Dr. Garcia brought a list of the names of individuals in cases in which he testified — either at trial or by deposition — for the immediately-preceding three years. The list comprised approximately 205 names. Park’s counsel asked Dr. Garcia to identify from the list those individuals for whom he provided treatment as a patient as opposed to those for whom he performed an IME or CME. The following exchange ensued:

Q. And are these — can you just tell me briefly what percentage is plaintiff, what percentage is defense?
A. I can’t. I can tell you that generally speaking, I would say it’s probably 70 percent defense, 30 percent plaintiff.
Q. In deposition or in trial?
A. Deposition and in trial.
Q. So your best recollection is that it’s 70 percent defense in depositions; correct?
A. I would say so, yes, sir.
Q. And your best estimate is 70 percent defense in trial; correct?
A. That’s correct, yes, sir....
Q. Okay. But I’m talking about the trial testimony, your trial testimony — do you want to look at these in the last year and tell me if you recognize the names of any of your patients in there?
A. No. I don’t want to give you the wrong number. I’m going to just tell you that I cannot give you an estimate. Because I was trying to answer the question, but now basically, you’re asking me to be more specific and I cannot give you a specific number....
Q. I’ll just — the lists of the trial testimony that you just gave me, can you just look at it and tell me if you recognize which of those people that you recognize — recall as being patients that you treated and had an ongoing relationship with them as a treating physician? That’s all I want to know....
THE WITNESS: Yeah, and I’ve mentioned several times, just by looking at the names, I wouldn’t be able to answer that.

Dr. Garcia explained that he could not identify what names on the list were patients he treated (versus individuals on whom he performed IME/CME exams) just by looking at the names because “[he wouldn’t] know the extent of the treatment of a specific patient, and in addition to that, usually the trials are regarding patients that may have been treated in the past, so it could have been a while.” Dr. Garcia approximated that on a weekly basis he saw approximately 100 patients and completed about five CMEs.

On March 13, 2014, following Dr. Garcia’s deposition, Park’s counsel followed up with a subpoena for deposition (the “Subpoena”) directed to a representative of Orthopedic with the most knowledge regarding:

1. Which of the persons or cases on the lists provided by Dr. Garcia, attached as Exhibits A & B, were actual patients (not IME exams) of Dr. Garcia.

Thereafter Orthopedic filed its Objection and Motion for Protective Order of Non-Party, asserting that: (i) the Subpoena imposed overly burdensome obligations beyond the scope of Florida Rules of Civil Procedure 1.280 and 1.310, and in violation of Florida law pursuant to Elkins v. Syk en, 672 So.2d 517 (Fla.1996); and (ii) the Subpoena would require Orthopedic to violate section 456.057, Florida Statutes (2018), which prohibits the disclosure of nonparty compulsory medical examination data without prior notice to all of the affected nonparties.

Parks responded, arguing that (i) he was entitled to know the percentages of work Dr. Garcia performed as a retained expert for plaintiffs and as a retained expert for defendants, as this information went to Dr. Garcia’s potential bias; (ii) the Subpoena did not place an undue burden or expense on Orthopedic; and (iii) the discovery .request would not result in a violation of. section 456.057 because it did not seek any information regarding the patient’s medical condition or treatment.

After a hearing, the trial court determined that Rule 1.280(b)(5)(A)(iii) was intended to permit discovery regarding testimony given by an expert in their capacity as a retained expert, and that a list which combined cases in which Dr. Garcia gave testimony as an expert with cases in which Dr. Garcia gave testimony as a treating physician did not comply with the underlying purpose of the rule. Thus, the court found that the rule permitted Parks to discover which of the individuals listed involved cases in which Dr. Garcia served as a retained expert (as opposed to a treating physician). The trial court entered its order overruling Orthopedic’s objection to item one of the Subpoena and Orthopedic appealed.

ANALYSIS

A “trial court has broad discretion in determining whether a protective order is warranted under the circumstances.” Smith v. S. Baptist Hosp. of Fla., 564 So.2d 1115, 1118 (Fla. 1st DCA 1990). Therefore, while the court’s factual findings will not be disturbed absent an abuse of discretion, Alvarez v. Cooper Tire & Rubber Co., 75 So.3d 789, 793 (Fla. 4th DCA 2011), we review de novo the court’s interpretation and application of Rule 1.280 and section 456.057, Pino v. Bank of N.Y., 121 So.3d 23, 31 (Fla.2013)

On appeal, Orthopedic contends that Dr. Garcia complied with rule 1.280 and Elkins by:

1) Producing a list of all cases during the preceding three-year period in which he testified either at trial or by deposition, either as a retained expert witness or a treating physician; and

2) Explaining his general litigation experience and giving an approximation of his work for both defendants and plaintiffs.

Orthopedic argues that further bias-discovery — in the absence of any suggestion that Dr. Garcia was falsifying, misstating or obfuscating — is unauthorized under rule 1.280 and Elkins. It further asserts that the ordered discovery violates section 456.057, which protects against the disclosure of patient information. We find neither argument persuasive.

I.Elkins and Rule 1.280

With regard to expert witness discovery, Florida Rule of Civil Procedure 1.280(b)(5)(A)(iii) provides:

A party may obtain the following discovery regarding any person disclosed by interrogatories or otherwise as a person expected to be called as an expert witness at trial:
1. The scope of employment in the pending case and the compensation for such service.
2. The expert’s general litigation experience, including the percentage of work performed for plaintiffs and defendants.
3. The identity of other cases, within a reasonable time period, in which the expert has testified by deposition or at trial.
4. An approximation of the portion of the expert’s involvement as an expert witness, which may be based on the number of hours, percentage of hours, or percentage of earned income derived from serving as an expert witness; however, the expert shall not be required to disclose his or her earnings as an expert witness or income derived from other services.
(Emphasis added).

In Elkins, 672 So.2d at 521, the Florida Supreme Court approved this Court’s decision in Syken v. Elkins, 644 So.2d 539 (Fla. 3d DCA 1994), and adopted the district court’s established criteria governing the discovery of financial information from expert witnesses:

1. The medical expert may be deposed either orally or by written deposition.
2. The expert may be asked as to the pending case, what he or she has been hired to do and what the compensation is to be.
3. The expert may be asked what expert work he or she generally does. Is the work performed for the plaintiffs, defendants, or some percentage of each ?
4. The expert may be asked to give an approximation of the portion of their professional time or work devoted to service os an expert. This can be a fair estimate of some reasonable and truthful component of that work, such as hours expended, or percentage of income earned from that source, or the approximate number of IME’s that he or she performs in one year. The expert need not answer how much money he or she earns as an expert or how much the expert’s total annual income is.
5. The expert may be required to identify specifically each case in which he or she has actually testiñed, whether by deposition or at trial, going back a reasonable period of time, which is normally three years. A longer period of time may be inquired into under some circumstances.
6. The production of the expert’s business records, files, and 1099’s may be ordered produced only upon the most unusual or compelling circumstance.
7. The patient’s privacy must be observed.
8. An expert may not be compelled to compile or produce nonexistent documents.

Id. at 546 (emphasis added).

Importantly, the Florida Supreme Court found “that the district court’s opinion strikes a reasonable balance between a party’s need for information covering an expert witness’s potential bias and the witness’s right to be free from burdensome and intrusive production requests.” Elkins, 672 So.2d at 522.

Thus, both Elkins and rule 1.280 focus on the discovery to be provided by “the expert,” and require “the expert” to specifically identify those cases in which he has testified by deposition or trial. It logically follows from this that a party is entitled to discover those cases in which the expert testified as an expert. In fact, the third and fourth criteria identified in Elkins (and the second and fourth criteria set forth in the rule) expressly contemplate such discovery. Though Dr. Garcia provided an expansive list of persons Ol-eases in which he testified by deposition or trial, covering testimony provided both.as a retained expert and as a treating physician, he was unable to differentiate those cases in which he testified “as an expert” from those cases in which he testified as a treating physician. Such a distinction is relevant and could prove significant in assessing potential bias.

Dr. Garcia initially testified at his deposition that of the list of 205 cases in which he testified or gave a deposition, approximately 70% were on behalf of the defense and 30% were on behalf of the plaintiff. Later in the deposition, however, when asked to identify only those cases in which he gave testimony as an expert witness (rather than testimony given as a treating physician), Dr. Garcia was unable to do so, eventually disclaiming the original estimated percentages of plaintiff and defense work. As a result, the trial court determined that the Parks was entitled to depose the person from Orthopedic with the most knowledge to identify which names or cases on the list involved Dr. Garcia’s testimony as an expert witness (as opposed to testimony as a treating physician). We find no abuse of discretion in the trial court’s factual determinations in this regard. We also conclude that the trial court correctly applied rule 1.280 and the underlying purpose of the rule in light of the factual circumstances presented.

As this court has previously recognized, “Florida case law and Florida Rule of Civil Procedure 1.280 ... provide ‘reasonable latitude for inquiry about the extent of a trial expert’s alignment with one side, or another.’ ” Sanchez v. Nerys, 954 So.2d 630, 631 (Fla. 3d DCA 2007). We do not find an abuse of discretion in the trial court’s decision to deny Orthopedic’s motion for protective order where Parks’ discovery requests sought nothing more than a differentiation between Dr. Garcia’s relevant work “as an expert” and his other work as a treating physician.

Given Dr. Garcia’s inability to differentiate the names on the list (retained expert testimony v. treating physician testimony), it might well be inaccurate for Dr. Garcia to be permitted to maintain, and to require Parks to accept, the equivocal and undifferentiated estimates provided by during Dr. Garcia’s deposition. A single hypothetical should clarify this point:

Assume that the list provided by Dr. Garcia contained a total of 200 cases (for ease of calculation) in which Dr. Garcia provided testimony either as a retained expert witness or as a treating physician.

Assume that in 30 percent of those cases (60 cases) Dr. Garcia provided testimony for the plaintiff, either as a retained plaintiffs expert or as a treating physician. The remaining 70 percent (140) would represent cases in which Dr. Garcia testified as a retained defense expert. One could conceivably argue that these percentages (70 percent defense, 30 percent plaintiff) reveal some potential bias or alignment as an expert witness.

Assume that when the list is differentiated (i.e., broken down to distinguish between testimony given as a retained plaintiffs expert versus testimony given as a treating physician) it is determined that of the 30 percent (60 cases) in which Dr. Garcia provided testimony “for the plaintiff,” every single one of those 60 cases involved testimony provided by Dr. Garcia as a treating physician. In other words, 100 percent of the cases in which Dr. Garcia testified “for the plaintiff’ was testimony provided as a result of his relationship as the plaintiffs treating physician, and there were no cases on the list in which he testified “for the plaintiff’ as a result of being retained as an expert witness for the plaintiff.

This would alter significantly the percentages: instead of a 70/30 split, we would have a 100/0 split, because'the hypothetical differentiated list reveals that in every single case in which Dr. Garcia testified as a retained expert (140 out of 200 cases), he did so only on behalf of the defense. The remaining 60 cases involved testimony provided not as a plaintiffs retained expert, but rather as a result of treatment and care provided as each plaintiffs treating physician. Though of course we have no way of knowing whether or how the actual percentages will be affected by this differentiation, it is clear that Parks was entitled to seek this information to further discover the extent of any potential bias.

We also find no merit in Orthopedic’s assertion that Parks’ request would require it to create a document that does not exist. See Orkin Exterminating Co. v. Knollwood Props., Ltd., 710 So.2d 697 (Fla. 5th DCA 1998).

II. Section 456.057, Florida Statutes

Finally, Orthopedic argues that the order violates section 456.057, Florida Statutes (2014), which protects against the disclosure of patient information. This statute concerns the control of patient records and provides:

Except as otherwise provided in this section ..., such records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient or the patient’s legal representative, or other health care practitioners involved in the patient’s care or treatment, except upon written authorization from the patient. However, such records may be furnished without written authorization under the following circumstances:
3. In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient’s legal representative by the party seeking such records.

§ 456.057(7)(a)(3), Fla. Stat. (2014). We find that the order at issue does not implicate section 456.057 as it does not require Orthopedic to provide any reports or any information regarding the patients’ medical conditions. Further, it was Dr. Garcia who provided Parks with the names of certain patients, by producing the undifferentiated list at his deposition. The trial court’s order simply requires Orthopedic to review the list previously provided by Dr. Garcia, and to differentiate the names of patients treated by Dr. Garcia from the names of individuals upon whom Dr. Garcia performed an IME or CME as a retained expert.

Accordingly, we affirm the order denying Orthopedic’s motion for protective order.

Affirmed.

      . IME is short for "Independent Medical Examination” and CME is short for "Compulsory Medical Examination.”

      . Orthopedic was not a party to the proceeding below.

      . The Subpoena also requested the appearance of the witness with the most knowledge regarding: "Which of the persons or cases on the lists provided by Dr. Garcia, attached as Exhibit A involve depositions given by Dr. Garcia in worker’s compensation cases, and which were depositions given in personal injury/liability cases.” The trial court, however, denied this request, and this issue is not before us on appeal.

      . The court also directed that these criteria be made part of the commentary to Florida Rule of Civil Procedure 1.280.

      . This is not to suggest that an expert's work as a treating physician could never be relevant or discoverable. For example, where the expert is considered a "plaintiffs expert” the defense might properly seek discovery regarding the number and percentage of cases in which the plaintiff's attorney refers a client to the expert for purposes of medical treatment. See e.g., Steinger, Iscoe & Greene, P.A. v. GEICO Gen. Ins. Co., 103 So.3d 200 (Fla. 4th DCA 2012). We also do not ignore the fact that a plaintiff's treating physician may often be characterized as a "hybrid” expert, in that such a witness may be providing testimony on the plaintiff’s medical history and course of treatment, while also offering opinions regarding future medical treatment and permanency.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    DYNAMIC PUBLIC ADJUSTERS, INC., Appellant, v. Henry RODRIGUEZ, etc., et al., Appellees.
    No. 3D13-2868.
    District Court of Appeal of Florida, Third District.
    Nov. 26, 2014.
    Rehearing Denied Jan. 20, 2015.

      Alvarez, Carbonell, Feltman & DaSilva, PL, and Paul B. Feltman, for appellant.
    Arnaldo Velez, P.A., and Arnaldo Velez, Coral Gables, for appellee Henry Rodriguez.
    Before WELLS and SUAREZ, JJ., and LEVY, Senior Judge.
   PER CURIAM.

Dynamic Public Adjusters, Inc. (“Dynamic”), a licensed public adjusting company, appeals the trial court’s order awarding Henry Rodriguez (“Rodriguez”), an appraiser, a $400,000 fee stemming from the settlement of the two supplemental Hurricane Wilma claims filed by Key West Beach Club Condominium Association 1, Inc. and Key West Beach Club Condominium Association No. 2, Inc. (collectively, “the condominium associations”) against their property insurer, Citizens Property Insurance Corporation (“Citizens”). We reverse the order under review and remand with instruction to enter a judgment awarding the $400,000 fee to Dynamic.

On October 24, 2005, Key West Beach Club Condominium 1 and 2 suffered damages as a result of Hurricane Wilma, and Citizens subsequently paid $1.2 million to the condominium associations for the loss. Thereafter, in April 2010, the condominium associations, unsatisfied with Citizens’ original payment, retained Dynamic to pursue supplemental claims for the losses suffered as a result of Hurricane Wilma. Dynamic and the condominium associations entered into a Public Insurance Adjuster’s Retainer Agreement (“the Public Adjuster’s Agreement”) whereby Dynamic agreed to act as the condominium associations’ agent and representative during the adjustment of their supplemental claims against Citizens. This work included several inspections, estimates, and other activities to ascertain the value of the loss. In exchange, the condominium associations agreed to pay Dynamic “an amount equal to 20% of the gross amount of the collectible loss or damage recovered ... regardless of whether the loss is settled or paid by [Citizens] as a result of adjustment, mediation, appraisal, arbitration, lawsuit or otherwise.” The Public Adjuster’s Agreement further provided: “For supplemental or re-open claims, Public Adjuster’s fee will be calculated only for claim payments or settlement obtained through the work of Public Adjuster after entering into this contract.”

At the time Dynamic and the condominium associations entered into the Public Adjuster’s Agreement, Rodriguez was working as a public adjuster apprentice for Dynamic. Rodriguez assisted Dynamic in preparing the inspection reports and estimates of loss submitted to Citizens on the condominium associations’ behalf. Citizens reviewed these reports and estimates and denied the condominium associations’ supplemental claims.

In October 2010, the condominium associations filed suit against Citizens seeking declaratory relief and damages for breach of the insurance policies. The trial court granted the condominium associations’ motion to compel appraisal based on the terms of the insurance policies, which also granted the condominium associations the right to appoint one of the appraisers. By then, Rodriguez and Dynamic had suffered a falling out, and Rodriguez was no longer working for Dynamic. Rodriguez and the condominium associations entered into two Appraisal Agreements, in which Rodriguez agreed to act as the condominium associations’ appraiser in exchange for 20% of the monies collected from Citizens on the supplemental claims.

In the Appraisal Agreements, Rodriguez and the condominium associations recognized that the condominium associations had previously entered into an agreement with Dynamic for the supplemental claims, and that the condominium associations had already agreed to pay Dynamic 20% of the amount recovered by the condominium associations from Citizens in regard to the supplemental claims. Additionally, the Appraisal Agreements specifically capped the condominium associations’ total combined obligations to Dynamic and Rodriguez at 20%, with Rodriguez’s rights being inferior to Dynamic’s. Specifically, the Appraisal Agreements stated:

As a result [of the Public Adjuster’s Agreement], Henry Rodriguez agrees that his 20% appraisal fee for this claim is subject to a reduction by any amounts that may become due to Dynamic under [the condominium associations’] agreement with Dynamic. The maximum obligation that may be incurred by [the condominium associations] for all monies that may become due to Henry Rodriguez and Dynamic collectively in regard to this appraisal shall not exceed 20% of the recovered amount. Henry Rodriguez shall defend and indemnify [the condominium associations] from any claims asserted by Dynamic which could result in payment by [the condominium associations] of more than 20% of the amount recovered from [Citizens] to Henry Rodriguez or Dynamic collectively.

The appraisal' panel, which consisted of Rodriguez, Citizen’s chosen appraiser, and the umpire appointed by the trial court, entered a revised appraisal award awarding the condominium associations approximately $3.7 million for the supplemental claims. After the appraisal process was completed, several coverage issues regarding the supplemental claims remained pending. Rather than litigating those issues, however, Citizens and the condominium associations settled the supplemental claims for $2 million.

Rodriguez and Dynamic both intervened in the action, with both asserting an interest in the condominium associations’ recovery from Citizens based on their respective fee arrangements. The trial court ordered the condominium associations’ counsel to retain the disputed $400,000 fee (20% of the $2 million settlement) in his trust account pending resolution.

Following a non-jury trial on Rodriguez’s and Dynamic’s claims, the trial court entered an order awarding Rodriguez the entire $400,000 fee. In doing so, the trial court found that the settlement of the supplemental claims “was the direct product of the efforts of Rodriguez conducted on behalf of the condominium associations pursuant to the appraisal agreements with [the condominium associations].” Therefore, the settlement “did not result as ‘the work of the Public Adjuster’ as specified by Dynamic’s Public Insurance Adjuster’s Retainer Agreement but rather as a product of the appraisal process.” Dynamic appeals the trial court’s determination that Rodriguez is entitled to the $400,000 fee.

Dynamic contends that the trial court erred in construing the Public Adjuster’s Agreement and awarding the $400,000 fee to Rodriguez. Based on our de novo review of the Public Adjuster’s Agreement and the Appraisal Agreements, we agree. See Real Estate Value Co. v. Carnival Corp., 92 So.3d 255, 260 (Fla. 3d DCA 2012) (“The interpretation of a contract ... is a matter of law subject to de novo review.”); Muniz v. Crystal Lake Project, LLC, 947 So.2d 464, 469 (Fla. 3d DCA 2006) (“The interpretation of a contract involves a pure question of law for which [an appellate] court applies a de novo standard of review.”); Barone v. Rogers, 930 So.2d 761, 764 (Fla. 4th DCA 2006) (holding that when a contract provision is clear and unambiguous, “the standard of review is de novo, and the appellate court may reach a different interpretation than the trial court”). In the instant case, the Public Adjuster’s Agreement is clear that Dynamic is entitled to 20% of the settlement between Citizens and the condominium associations; and the Appraisal Agreements are clear that Rodriguez’s 20% interest in the settlement proceeds are subordinate to' Dynamic’s. Because the condominium associations can only pay a maximum total of 20%, the full 20% must go to Dynamic.

Pursuant to the Public Adjuster’s Agreement, the condominium associations agreed to pay Dynamic 20% of the gross amounts recovered from Citizens on the condominium associations’ supplemental claims “regardless of whether the loss is settled or paid by [Citizens] as a result of adjustment, mediation, appraisal, arbitration, lawsuit or otherwise.... ” (Emphasis added). Simply put, the parties contemplated that settlement or payment of the loss may not occur during Dynamic’s adjustment of the supplemental claims, but Dynamic would be entitled to 20% of any recovery from Citizens regardless of the method of that recovery. Indeed, the condominium associations agreed to pay Dynamic the 20% contingency fee “regardless” of whether the payment or settlement was as the result of a lawsuit, appraisal, or “otherwise.” Therefore, as the settlement of the supplemental claims was a result of the appraisal process, we conclude that Dynamic is entitled to the $400,000 contingency fee under the terms of the Public Adjuster’s Agreement.

The trial court’s determination that Dynamic was not entitled to the contingency fee under the Public Adjuster’s Agreement was simply a misinterpretation of the following provision in the Public Adjuster’s Agreement: “For supplemental or re-open claims, Public Adjuster’s fee will be calculated only for claim payments or settlement obtained through the work of Public Adjuster after entering into this contract.” (Emphasis added). This provision merely provides that the calculation of Dynamic’s fee will be based only on payments made by Citizens on the supplemental claims and would not include the $1.2 million Citizens had already paid. It does not mean that Dynamic would recover its 20% contingency fee only if Citizen’s payment resulted directly from Dynamic’s initial adjustment and request for payment of the supplemental claims.

Finally, in the Appraisal Agreements, the condominium associations ánd Rodriguez agreed that the condominium associations’ total obligations to Dynamic and Rodriguez combined was capped at 20% of the condominium associations’ recovery from Citizens on the supplemental claims. Rodriguez’s share, if any, was to be paid only after Dynamic received its portion. In agreeing to act as the condominium associations’ appraiser, particularly since he already knew that Dynamic was contractually entitled to 20% of the recovery, Rodriguez assumed the risk of not being paid for his services. As we have determined that the condominium associations are required to pay Dynamic the 20% contingency fee ($400,000) under the Public Adjuster’s Agreement, and the condominium associations cannot pay more than 20% under any circumstances, Rodriguez is contractually entitled to 0% of the $400,000 fee under the Appraisal Agreement. Rodriguez took the risk that he would not recover his 20% fee by expressly subordinating his rights to those of Dynamic. Rodriguez’s gamble did not pay off, and he cannot now seek to undo Dynamic’s legally negotiated contract because his own bargain was poorly struck.

Accordingly, we reverse the order review and remand with instructions to enter a final judgment awarding the entire $400,000 fee to Dynamic.

      . The contractual provision is consistent with section 626.854(1 l)(a), Florida Statutes (2011), which provides:
      If a public adjuster enters into a contract with an insured ... to reopen a claim or file a supplemental claim that seeks additional payments for a claim that has been previously paid in part or in full or settled by the insurer, the public adjuster may not charge, agree to, or accept any compensation, payment, commission, fee, or other thing of value based on a previous settlement or previous claim payments by the insurer for the same cause of loss. The charge, compensation, payment, commission, fee, or other thing of value must be based only on the claim payments or settlement obtained through the work of the public adjuster after entering into the contract with the insured or claimant. Compensation for the reopened or supplemental .claim may not exceed 20 percent of the reopened or supplemental claim payment. ...

        (Emphasis added).


text:
    Todd Thomas FLORIO-BUNDY, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-2009.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2014.
    Rehearing Denied Feb. 18, 2015.
    Todd Thomas Florio-Bundy, Avon Park, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. Santiago v. State, 91 So.3d 919 (Fla. 2d DCA 2012).

DAMOORGIAN, C.J., WARNER and MAY, JJ., concur.


text:
    Curtis BAILEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-5531.
    District Court of Appeal of Florida, First District.
    Dec. 18, 2014.
    Rehearing Denied Feb. 2, 2015.
    Curtis Bailey, 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., VAN NORTWICK and ROWE, JJ., concur.


text:
    Christopher COTTLE, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-3061.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2014.
    Rehearing Denied Feb. 5, 2015.
    Christopher Cottle, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Christopher Cottle, appellant, appeals the order denying in part and affirming in part the jail credit awarded him as part of his sentence for grand theft, imposed after his probation related to that offense was revoked. Neither Cottle nor the State submitted briefs, so our review is limited to the record and the appealed order.

After analyzing the lower tribunal’s order and the transmitted record, we affirm the appealed order in all respects but one. The court below awarded Cottle twenty-five days’ jail credit for his time in custody from December 12, 2009 to January 5, 2010, observing that Cottle was given no credit for this incarceration. We agree that the record demonstrates that Cottle was not given any jail credit towards his sentence for this time period, and that a Department of Corrections warrant for Cottle’s arrest based on a violation of probation was executed by Duval County authorities on December 12, 2009. Cottle’s appearance bond issued in connection with this arrest, however, indicates that it was posted on December 29, 2009; January 5, 2010 is the date a copy of the bond was filed and docketed in the case file by the clerk of the court. It seems, therefore, that the court erroneously awarded Cottle seven days’ jail credit (December 30, 2009 to January 5, 2010) for time he was actually out on bond.

Accordingly, we AFFIRM in part, REVERSE in part, and REMAND to allow the circuit court to award Cottle eighteen days’ jail credit for his time in custody from December 12, 2009 to December 29, 2009.

LEWIS, C.J., VAN NORTWICK and SWANSON, JJ., concur.


text:
    Diana P. MACE as Trustee, Steven B. Mace and Jennifer Mace, Appellants, v. SRMOF II 2012-1 TRUST, U.S. Bank Trust National Association, not in its Individual Capacity but Solely as Trustee, Appellee.
    No. 1D14-3595.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2014.
    Rehearing Denied Feb. 3, 2015.
    Niles B. Whitten, Gainesville, for Appellants.
    No appearance for Appellee.
   PER CURIAM.

Appellants timely brought this appeal seeking review of an order of the circuit court that approved, ratified, confirmed, and adopted the general magistrate’s recommendation that a final judgment of foreclosure be entered in favor of the plaintiff. Although the court adopted that recommendation, it failed to enter a final judgment. Because the judicial labor required to enter a final judgment of foreclosure has yet to be concluded, the appeal is premature. Cf. § 45.0315, Fla. Stat. (2010) (providing that the indebtedness may be cured and a foreclosure sale prevented “by paying the amount of moneys specified in the judgment, order, or decree of foreclosure”); Fla. R. Civ. P. Form 1.996(a) (“Final Judgment of Foreclosure”). Therefore, the order did not complete the judicial labor required of the cause and the appeal is premature. See Caufield v. Cantele, 837 So.2d 371, 375 (Fla.2002) (reaffirming the traditional test for finality requiring that “no further action by the court will be necessary”). Accordingly, the appeal is dismissed.

PADOVANO, MARSTILLER, and OSTERHAUS, JJ., concur.


author: VAN NORTWICK, J. ROWE, J.,

text:
    Christopher PERRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5189.
    District Court of Appeal of Florida, First District.
    Dec. 24, 2014.
    Rehearing Denied Feb. 3, 2015.

      Nancy A. Daniels, Public Defender, Tallahassee, and David A. Henson, Special Assistant Public Defender, Brevard, North Carolina, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Christopher S. Perry challenges his multiple convictions and sentences arising from the repeated sexual battery of his daughter, E.P., by another man, Robert G. Young. In counts 1 through 5 he was charged with capital sexual battery as a principal to the offenses committed by Young; in count 6 he was charged with lewd molestation as a principal to Young’s actions; in count 7 he was charged with felony child neglect; and in count 8 he was charged with conspiracy with his wife and mother-in-law to commit capital sexual battery on E.P. Perry was convicted of all 8 counts.

Among other things, Perry argues that the trial court committed reversible error (i) in denying his motion for judgment of acquittal (JOA) on counts 1 through 5 because the evidence was legally insufficient to convict him as a principal for crimes committed by Young, (ii) in denying his motion for a JOA on the charge of conspiracy because the evidence did not establish an agreement, and (iii) in denying his motion in limine to exclude from trial reference to prior sexual conduct among Perry, his wife, and Young. For the reasons that follow, we reverse the denial of the motion for a JOA on the conspiracy count and remand for entry of a JOA on that count. We affirm the other issues raised on appeal.

Perry argues that the trial court erred in denying appellant’s motion for a JOA as to count 8 (conspiracy) because there was a lack of evidence that appellant entered into any sort of agreement with Mary Perry or Patricia Woloszynowski (the grandmother) to commit the crime of capital sexual battery on E.P. The offense of conspiracy occurs when a person “agrees, conspires, combines, or confederates with another person or persons to commit an offense.... ” § 777.04(3), Fla. Stat. (2011); see Bell v. State, 111 So.3d 199 (Fla. 4th DCA 2013) (holding a conspiracy exists where there is an express or implied agreement between two or more persons to commit a criminal offense coupled with an intent to commit the offense); Schlicher v. State, 13 So.3d 515, 517 (Fla. 4th DCA 2009). Proof that a defendant was at the scene of a crime, had knowledge of it, or aided others in the commission of the substantive offense is not sufficient proof of conspiracy. Jackson v. State, 74 So.3d 563, 565 (Fla. 4th DCA 2011); Sheriff v. State, 780 So.2d 920, 921 (Fla. 4th DCA 2001). The offense of conspiracy may be proved by circumstantial evidence. In Vasquez v. State, 111 So.8d 273, 275 (Fla. 2nd DCA 2013), the Second District stated as follows:

A conspiracy exists where there is an express or implied agreement between two or more persons to commit a criminal offense and an intention to commit the offense. Schlicher v. State, 13 So.3d 515, 517 (Fla. 4th DCA 2009). The fact-finder may infer the agreement from the circumstances; direct proof is not necessary.

In McCants v. State, 587 So.2d 673, 673 (Fla. 1st DCA 1991), this court stated that the State could prove the elements of a conspiracy by circumstantial evidence, but that the State “must prove that there was an intent to conspire, the intention to commit the offense, and the existence of an agreement.”

We agree with Perry that no direct proof was introduced below of an agreement between Perry and his wife or mother-in-law for the commission of a sexual battery. Further, the circumstantial evidence in the record is not sufficient to establish the existence of an agreement or intent to conspire.

Accordingly, we reverse the conviction and sentence for conspiracy and remand for entry of a JOA on that count.

AFFIRMED, in part, and REVERSED, in part, and REMANDED for further proceedings consistent with this opinion.

PADOVANO, J., concurs, ROWE, J., concurs in part and dissents in part with opinion.

ROWE, J.,

concurring in part, dissenting in part.

I concur with the majority’s determination that the trial court properly denied Christopher Perry’s motion for judgment of acquittal on counts one through six and in denying his motion in limine to exclude references to prior sexual conduct between Perry, Mary Perry (his wife), and Young. However, I respectfully dissent from the majority’s holding that the trial court erred in denying the motion for judgment of acquittal on the charge of conspiracy to commit sexual battery.

Background

This case arises from the sexual abuse of Christopher Perry’s daughter, E.P., by Robert Young. Complicit in the abuse of E.P. were Perry, Mary Perry (Perry’s wife and E.P.’s mother), and Patricia Wol-oszynowski (Perry’s mother-in-law and E.P.’s grandmother).

Perry met Robert Young in 1994, and the two formed a close friendship, spending their days off together, and attending each other’s family events. In 2001, shortly before Perry married Mary Perry, E.P. was born. By this time, Young was such an integral part of the Perry family that he drove Mary Perry to the hospital when she gave birth to E.P. Mary Perry described Young as almost a godfather to her children and as a brother to Perry. Perry himself described Young as his brother, and allowed his daughter E.P. to call Young “Uncle Robert.” But the relationship between Perry and Young was far more intimate than that of brothers. Perry, Mary Perry, and Young participated in threesomes. And unbeknownst to Perry, Mary Perry and Young had a long-term affair apart from the threesomes.

In 2010, while the Perry family was living with Mary Perry’s mother, Patricia Woloszynowski, Young moved into the Perry home. Neither Perry nor Mary Perry were working during this time; Young paid all of their bills and provided transportation for the family. The Perry family was financially dependent on Young.

When Young initially moved into the Perry home, he slept on the couch, but he soon moved into E.P.’s bedroom and slept in the same bed as the eight year-old little girl. The Perry home was extremely small, with three bedrooms and one bathroom, all within a few feet of one another. Perry and Mary Perry shared one bedroom. The grandmother and E.P.’s two younger brothers shared the second bedroom. E.P. and Young shared the third bedroom. Despite the fact that Perry and Mary Perry knew that Young was a convicted sex offender, neither objected to Young sleeping with E.P. Neither did they object to Young bathing their young daughter, even though E.P. was old enough to bathe herself and was capable of doing so.

In November 2010, the Department of Children and Families received an alert about E.P. sleeping in the same bed as an uncle. When confronted by the DCF investigator, Perry and Mary Perry denied that Young was sleeping in E.P.’s bedroom and further denied that any of their children were left alone "with Young. After the investigator prepared a safety plan to protect the Perry children from sexual abuse, Perry and Mary signed the safety plan, affirmatively agreeing that 'none of the children would have unsupervised contact with Young. However, despite their promise to investigators, Perry and Mary Perry continued to allow Young, a known sex offender, to sleep with their eight year-old daughter.

In February 2011, the Department received another report of an adult male sleeping in the same bed as E.P. When interviewed by a child protection team investigator, E.P. admitted that Young was sleeping in her bed and that her parents were aware of the sleeping arrangement. The investigator and a detective observed a lock on the outside of E.P.’s door. E.P. would later tell investigators that her parents locked the door to her bedroom to keep her inside the room with Young. At a follow-up interview, E.P. admitted that Young had penetrated her vaginally and anally with his penis, that he forced her to perform oral sex on him, and that he performed oral sex on her.

When confronted by investigators, Perry stated that he remembered signing the December 2010 safety plan, but denied that Young slept with E.P. Perry insisted that Young was sleeping on the couch. Perry also denied that Young had any unsupervised contact with E.P. Perry admitted to the investigator that he was aware that Young was a convicted sex offender but asserted that he did not believe that Young would do anything to hurt E.P. When Young voluntarily left the Perry home that same day, Young gathered his belongings from E.P.’s bedroom.

When confronted by investigators, Mary Perry admitted that she and Perry never attempted to follow the safety plan put in place to protect the Perry children from sexual abuse by Young. Mary testified that she witnessed Young sexually abusing E.P., that she told Perry what she had seen, and that neither of them took any action to prevent the continuation of the abuse. Mary Perry further stated that she and Perry concealed Young’s actions from the Department during the investigation. Mary Perry and Perry consistently denied to DCF investigators that Young slept with their daughter and misled investigators by falsely stating that Young was sleeping on the couch.

At trial, Perry continued to assert that Young never abused his daughter. Perry denied that he knew that Young’s prior sex offense was for molesting Young’s thirteen-year-old step-daughter, even after a recorded interview of Perry making such an admission to a DCF investigator was played for the jury. Perry admitted that he made the conscious decision to lie to the authorities that were investigating the allegations of sexual abuse. He stated that he did not believe the allegations against Young because he had known Young for eighteen years and he was like a brother to him.

Perry moved for judgment of acquittal on the charge of conspiracy to commit sexual battery, arguing that there was no evidence that he had conspired with Mary Perry or Patricia Woloszynowski for the crime of capital sexual battery to be committed. The trial court found that there was sufficient evidence to allow this charge to go to the jury, and it denied the motion.

Judgment of Acquittal

The appropriate standard of review on a motion for judgment of acquittal is de novo. Jones v. State, 4 So.3d 687, 688 (Fla. 1st DCA 2009). If the State has presented competent evidence to establish every element of the crime, then judgment of acquittal is improper. State v. Odom, 862 So.2d 56, 59 (Fla. 2d DCA 2003).

I dissent from the majority’s conclusion that the trial court should have granted Perry’s motion for judgment of acquittal on the charge of conspiracy to commit capital sexual battery. “A conspiracy exists where there is an express or implied agreement between two or more persons to commit a criminal offense and an intention to commit the offense. . The fact-finder may infer the agreement from the circumstances; direct proof is not necessary.” Vasquez v. State, 111 So.3d 273, 275 (Fla. 2d DCA 2013) (internal citations omitted). Here, the State presented sufficient evidence to establish an implied agreement between Perry and his wife, Mary Perry, to commit the offense of capital sexual battery.

There was no dispute that Perry and Mary Perry were aware that Young was a convicted sex offender. The State presented evidence to show that Perry knew that the conviction stemmed from Young’s molestation of his thirteen-year-old stepdaughter. Despite this knowledge, Perry and Mary Perry consciously agreed to allow Young to sleep in the same bed as their eight-year-old daughter, rather than requiring him to sleep on the couch or in another bedroom. The State presented evidence that Mary Perry witnessed Young sexually abusing E.P., that she told Perry what she had seen, and that neither of them took any action to prevent the continuation of the abuse or to even confront Young. In fact, when Perry and Mary Perry were interviewed by investigators from the Department of Children and Families, they gave identical false statements on more than one occasion where they both denied to investigators that Young was sleeping in the same bed as E.P.; rather, they both insisted that Young had been sleeping on the couch. Their agreement to not disclose the actual sleeping arrangements prevented the removal of E.P. and her siblings from the home at an earlier date, which could have prevented additional sexual abuse to E.P.

Further, due to the investigators’ concerns about Young sexually abusing E.P., the Department presented Perry and Mary Perry with child safety plans designed to minimize the risk of sexual abuse by requiring no unsupervised contact between Young and the Perry children. Perry and Mary Perry both confirmed in writing that they would not allow Young to have unsupervised contact with their children and promised that Young would not sleep in the same bed as E.P. However, both Perry and Mary Perry willfully disregarded the plan and allowed Young to continue to sleep in the same bed as E.P. and to continue to bathe her. They did nothing to prevent the continued abuse of E.P. Indeed, Perry and Mary Perry went so far as to lock E.P. in her bedroom with the convicted sex offender.

The jury heard testimony that the Per-rys were financially dependent on Young. The Perrys were unemployed and Young paid for their utilities, cell phone, Internet access, and furniture. The jury also heard testimony about the long-term and close friendship between Young and the Perrys. The jury heard about the sexual relationships between Perry, Mary Perry, and Young. Thus, there was ample evidence before the jury to suggest why Perry and Mary Perry might conspire to conceal the abuse of their daughter by Young.

When the evidence is viewed in the light most favorable to the State, these collective actions provide strong evidence of a tacit agreement between Perry and Mary Perry to allow Young to have unrestricted access to their eight-year-old daughter and to actively conceal Young’s abuse of E.P. Moreover, the lies to the child protection investigators by Perry and Mary Perry were overt acts in furtherance of the charged conspiracy. See Melahn v. State, 843 So.2d 929, 930 (Fla. 5th DCA 2003) (holding that “[cjertain falsehoods told to an officer seeking information, which go beyond merely disavowing knowledge or refusing to cooperate with an investigation,” may constitute an overt act). Under these facts, the trial court did not err in denying the motion for judgment of acquittal on the conspiracy count because the jury could infer from the above-described circumstances that Perry and Mary engaged in a conspiracy to commit the offense of capital sexual battery of E.P. For these reasons, I would affirm the trial court’s judgment on all counts.

      . Robert Young was convicted in a separate case of five counts of attempted capital sexual battery, lewd and lascivious molestation, and provision of obscene material to a minor and was sentenced to life imprisonment.

      . Mary Perry pleaded guilty to conspiracy to commit sexual battery and aggravated child neglect and was sentenced to thirty years' imprisonment.

      .Patricia Woloszynowski pleaded guilty to aggravated child neglect and was sentenced to fourteen years’ imprisonment.


author: SHEPHERD, C.J.

text:
    Sarah OLIVER, Appellant, v. Heather Ann STUFFLEBEAM, Appellee.
    No. 3D12-2159.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 2014.

      Carlton Fields Jorden Burt and Cristina Alonso; Elizabeth F. Schwartz, for appellant.
    Shook Hardy & Bacon and Daniel B. Rogers, for appellee.
    Shannon P. Minter of National Center for Lesbian Rights (San Francisco, CA.), pro hac vice for appellant.
    Before SHEPHERD, C.J., and WELLS and ROTHENBERG, JJ.'
   SHEPHERD, C.J.

This is an appeal by a same-sex couple from a sua sponte order entered in the court below, dismissing their petition for dissolution of their out-of-state marriage on the authority of section 741.212 of the Florida Statutes which states that same-sex marriages “are not recognized for any purpose in this state.” The couple, who are respectively appellant and appellee in this court, do not challenge the validity of the statute. Rather, they come to us in agreement on a particular interpretation of the statute, and ask us to place our imprimatur on that interpretation. It is quite apparent on the face of the record in this case that there is no controversy over the point on appeal between these parties. For this reason, we affirm the dismissal of this case in that the petition for dissolution of marriage lacks a case or controversy requiring the expenditure of judicial labor.

The facts of this case are undisputed and can be succinctly stated. Sarah Oliver and Heather Stufflebeam, both female, were married under the laws of Iowa on August 17, 2009. Sometime thereafter, they moved to Florida, where on May 29, 2012, Oliver filed an uncontested petition in the family court of the Eleventh Judicial Circuit, alleging their marriage was irretrievably broken and praying for a decree of dissolution. On July 12, 2012, after a hearing on the petition, the trial court sua sponte dismissed the petition with prejudice on the authority of section 741.212 of the Florida Statutes, which prohibits the recognition of a marriage between persons of the same-sex entered into in any jurisdiction “for any purpose.” Oliver, in an appeal in which her appellee partner joins, challenges that decision.

Discussion

We begin by stating what this case is not about. This case is not about the constitutionality or merits of same-sex marriage. The parties did not raise the constitutionality of section 741.212 in the trial court or as a point on appeal before us. In fact, they urge us to reverse the decision below in order to avoid constitutional issues. The statute the parties wish us to “interpret” reads as follows;

Section 741.212. Marriages between persons of the same sex
(1) Marriages between persons of the same sex entered into in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, or relationships between persons of the same sex which are treated as marriages in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, are not recognized for any purpose in this state.

§ 741.212, Fla. Stat. (1997) (emphasis added). Oliver and Stufflebeam argue that on plain reading, the statute by its terms applies only to marriages, not divorces. While seductive in its simplicity, their argument lacks support in either law or the rudiments of logic. Simply stated, one cannot dissolve a marriage where there is not a marriage to dissolve.

It has long been the law of this state that the granting of a divorce “concedes that a valid marriage in fact exists.” Kuehmsted v. Turnwall, 103 Fla. 1180, 138 So. 775, 777 (1932). Furthermore, the statute pursuant to which divorces are granted in this state requires a finding that a marriage is “irretrievably broken” before a dissolution of that marriage can be granted. § 61.052(1)(a), Fla. Stat. (2013) (requiring that facts must support a “marriage is irretrievably broken,” to grant a dissolution of marriage) (emphasis added); Nelms v. Nelms, 285 So.2d 50, 50 (Fla. 4th DCA 1973) (“It seems clear now that failure to contest the allegation that the marriage is irretrievably broken, or a stipulation that it is so broken, does not suffice. The chancellor must make that finding based upon the evidence adduced.”) (emphasis added); see also § 61.001, Fla. Stat. (2013) (stating the purpose of the statute revolves around protecting the “integrity of marriage” and the “amicable settlement of disputes that arise between parties to a marriage”) (emphasis added). Where there is no valid marriage there can be no divorce. Groover v. Groover, 383 So.2d 280, 283 (Fla. 5th DCA 1980); see also Hall v. Maal, 32 So.3d 682, 687 (Fla. 1st DCA 2010) (“The legislature has clearly provided that same-sex marriages are invalid, stating that they ‘are not recognized for any purpose in this state.’ § 741,212(1), Fla. Stat. (2002).”).

It is also true in this state, with just four exceptions, that every case must involve a real controversy as to the issue or issues presented. Dep’t of Revenue v. Kuhnlein, 646 So.2d 717, 720 (Fla.1994) (citing Interlachen Estates, Inc. v. Brooks, 341 So.2d 993 (Fla.1976)). Where there is no case or controversy, there is no standing and the case cannot proceed. See Ferreiro v. Philadelphia Indem. Ins. Co., 928 So.2d 374, 377 (Fla. 3d DCA 2006) (“To satisfy the requirement of standing, the plaintiff must show that a case or controversy exists between the plaintiff and the defendant”).

Florida has evidenced a strong public policy against the recognition of same-sex marriages, including most recently by a super-majority vote of its citizens. See Art. I, § 27, Fla. Const. (eff. January 6, 2009); Advisory Opinion to the Attorney General Re Florida Marriage Protection Amendment, 926 So.2d 1229, 1235 (Fla.2006) (stating that the proposed constitutional amendment recognizing only marriages between a man and a woman and invalidating same-sex marriages “implement[s] a public policy decision of statewide significance”). Subject to the enumerations of the Federal Constitution, the states “possess[ ] full power over the subject of marriage and divorce.” U.S. v. Windsor, — U.S. -, 133 S.Ct. 2675, 2691, 186 L.Ed.2d 808 (2013) (citing Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383-84, 50 S.Ct. 154, 74 L.Ed. 489 (1930)); see also Ryan v. Ryan, 277 So.2d 266, 274-75 (Fla.1973) (“[The dissolution of marriage] is the ongoing prerogative of the Legislature which also legislates the marriage in its creation”). Given Florida’s exclusive right, subject only to the confines of our Federal Constitution, to define both marriage and its dissolution within this state and Florida’s recognition of marriage as only between a man and a woman, same-sex couples do not have standing to seek in our courts the dissolution of a marriage that by Florida law does not exist. See Bashaway v. Cheney Bros., Inc., 987 So.2d 93, 96 (Fla. 1st DCA 2008) (recognizing Florida’s “public policy” that same-sex “legal relationship[s]” are “unattainable” in this state).

Oliver and Stufflebeam reply that our decision traps them into the very marriage Florida seeks to prohibit. That is not so. An action for annulment of their marriage may well lie in the trial court. See generally Kuehmsted, 138 So. at 777 (defining the basic difference between and annulment and a divorce); Kantaras v. Kantaras, 884 So.2d 155, 161 (Fla. 2d DCA 2004) (reversing the trial court’s order granting a dissolution of marriage for what the court found to be a same-sex couple and remanding for an annulment as sought by the appellant); Sack v. Sack, 184 So.2d 434, 436 (Fla. 3d DCA 1966) (“Where a marriage is validly contracted it should not be dissolved other than by divorce, or by a decree of annulment supported by allegation and proof of recognized grounds for annulment of marriage.”).

It is true that in granting an annulment, Florida typically determines “the validity of a marriage in accordance with laws of the place where the marriage occurred.” Johnson v. Lincoln Square Props., Inc., 571 So.2d 541, 542 (Fla. 2d DCA 1990) (holding that Florida Statute Section 741.211 did not serve to render validly entered, out-of-state common law marriages invalid). However, “[i]t should be noted that a court need not recognize as valid a marriage which is valid in the jurisdiction where consummated where recognition would affront the public policy of the forum state.” Anderson v. Anderson, 577 So.2d 658, 660 n. 3 (Fla. 1st DCA 1991); see also James Lockhart, Cause of Action to Annul Marriage, 29 COA 431 (1992) (stating though courts of a state “normally have the power to annul a marriage performed in another state only if it was invalid where performed ... [a] court has the power to annul a marriage validly contracted in another state only if the marriage violates some strong public policy of the forum state.”).

We acknowledge that the nation is presently engaged in a great national conversation on the subject of same-sex marriage. However, this is neither the time nor the place for this court to insert itself into that discussion.

We affirm dismissal of the petition filed in this case.

      . This position is legally puzzling. It would be a disingenuous court indeed that would "avoid” an issue to reach a particular result. We have no difficulty deciding a constitutional issue when properly raised. The parties did not raise the constitutionality of the statute either before this court or the trial court; thus, we do not reach any constitutional issues here. See Henderson v. Antonacci, 62 So.2d 5, 8 (Fla.1952) ("Courts should not voluntarily pass upon constitutional questions which are not raised by the pleadings.”).

      . The exceptions are: Art III, § 16(c), Fla. Const, (requiring the attorney general to petition the Supreme Court for a declaratory judgment determining the validity of joint resolutions of legislative apportionment); Art IV, § 1(c), Fla. Const, (authorizing the Governor to request the opinion of the Supreme Court as to the interpretation of any portion of the constitution upon any question affecting his powers and duties); Art IV, § 10, Fla. Const, (requiring the Attorney General to request the opinion of the Florida Supreme Court as to validity of citizen’s initiatives circulated pursuant to Article XI, section 3); Art V, § 2, Fla. Const, (authorizing the Supreme Court and district courts of appeal to submit questions relating to military law to the federal Court of Appeals for the Armed Forces for an advisory opinion).

      . The amendment, labeled the Florida Marriage Protection Amendment, was approved by the state's electors at a General Election held on November 4, 2008, by a margin of 61.9% to 38.1%. Just two years earlier, the people of the state amended Article XI, section 5 of their constitution to require that proposed constitutional amendments be "approved by a vote of at least sixty percent of the electors voting on the measure.” In the ensuing four election cycles, only 46% (13 of 28) proposed constitutional amendments presented to the electorate were approved, compared to 88% (30 of 34) during the four years prior to the adoption of the super-majority amendment to Article XI, section 5.

      . They argue, for example, that interpreting the statute contrary to their desires will lead to the absurd result of preventing bisexual people who have ended their relationship with a same-sex spouse from later entering into a valid marriage with an opposite-sex spouse, if they chose to do so; render bigamous and void ab initio any later marriage in jurisdictions which recognize same sex marriage; continue unwanted rights and responsibilities inter se, including having to share later-acquired assets with each other; and potentially harming innocent third parties who have legal ties to them, such as other family members or any children they may have.


author: VAN NORTWICK, J. MARSTILLER, J.,

text:
    Don G. McCOY, Charles Yoorhis, Larry L. Lee, Gary Walsingham, Harvey Hollingsworth, Derivatively on behalf of Nominal Defendant Magic Broadcasting, LLC, A Florida Limited Liability Company, Appellants, v. Michael E. DURDEN, an Individual; Durden Enterprises II, Inc., a Delaware Corporation; and Durden Enterprises, LLC, An Inactive Florida Limited Liability Company, Appellees.
    No. 1D13-2113.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2014.

      Tucker H. Byrd and Aaron C. Garnett of Morgan & Morgan,' P.A., Orlando, for Appellants.
    Michael P. Dickey and Jeffrey S. Carter of Barron & Redding, P.A., Panama City, for Appellees.
   VAN NORTWICK, J.

Don G. McCoy (McCoy), Charles Voo-rhis, Larry L. Lee, Gary Walsingham, and Harvey Hollingsworth, derivatively on behalf of nominal defendant Magic Broadcasting, LLC (Magic), a Florida limited liability company (LLC), appeal a final order granting summary judgment in favor of Michael E. Durden (Durden), Durden Enterprises II, Inc. (DE2), a Delaware corporation, and Durden Enterprises, LLC (DEI), a Florida limited liability company, appellees, in the appellants’ action for breach of fiduciary duty and an accounting. Because there are numerous questions of material fact relating to whether the appellees breached their duty of loyalty under the Florida Limited Liability Company Act (LLC Act), section 608.4225, Florida Statutes (2011), as modified by the operating agreement for Magic, the trial court erred in granting summary judgment. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Background

The appellants were members of Magic, which was formed to acquire and operate radio stations. DEI and DE2 were lenders which financed the business operations and capital investment for Magic. Durden is the principal individual behind DEI and DE2. Earl Durden, the now-deceased father of Michael Durden, originally formed DEI and is discussed in the record and briefs, but he is not a party to this action. Magic’s board is comprised of five directors, all of whom are deemed LLC managers of Magic, but only some of whom are also members of the LLC. The initial five-person board directors of Magic were Earl Durden, Michael Durden, Scott Helms (all of whom represented the interests of DEI and DE2), McCoy, and James Milligan.

In January 2006, Magic purchased two California radio stations utilizing a loan of $65 million from DEI. Earl Durden, either individually or through entities created by him, held the greatest equity interest in Magic at the time of the loan. Magic defaulted on the loan from DEI in 2007. An extension of this loan was granted and another default occurred in 2008. At the time of the 2008 default, the promissory note was owned by DE2, as successor to DEI. Appellants allege these defaults re-suited from the Durdens’ nefarious influence on the operations of Magic. It is undisputed that, as a condition of refinancing, DE2 required that the Board of Magic accept the terms of an amended operating agreement. At that time, the Durdens still owned the largest equity interest in Magic. It is also undisputed that all LLC members of Magic knew of the contents of the operating agreement and the potential conflicts of interest that would arise from the creditor-debtor relationship between DE2 and Magic. The LLC members approved the new operating agreement and a new credit agreement was entered between DE2 and Magic.

The credit agreement provides that “Durden Enterprises II, Inc. [DE2], or its Affiliates, in its capacity as a member, shall have the right to designate three representatives [to the board of directors] who initially will be Earl Durden, Michael Durden, and Scott Helms (the ‘Durden Managers’).” According to McCoy’s affidavit (and not otherwise disputed), Michael Durden became CEO of Magic by virtue of DE2’s control of the board. McCoy’s affidavit states that Durden immediately began taking actions that were intentional, unreasonable, and unfair to Magic, and that his actions constituted bad faith and were intended to set Magic up for financial failure. McCoy asserts that Durden’s actions materially adversely affected the business of Magic. The affidavit states that, at a Magic board meeting on May 17, 2010, the Durden-led board discussed McCoy’s proposal to acquire Magic for $62 million and rejected the proposal. McCoy states that during the meeting, Durden stated that “[W]e would never sell the stations to McCoy.” The affidavit states that the board neither considered any of the factors set forth in paragraph 5.6 of the operating agreement nor followed the procedures required by that section. McCoy asserts that it was clear that Dur-den never intended to abide by the principles of good faith and fair dealing by meaningfully considering McCoy’s proposal.

McCoy avers that the board agreed to sell Magic’s California stations to an outside party, SoCal935 LLC (“SoCal935”), for approximately $35 million. McCoy asserts that the SoCal935 proposal was vastly inferior to his, because the offer by SoCal935 was $27 million less than McCoy’s offer and, under the SoCal935 offer, Magic would remain liable for the balance of the DE2 loan. The SoCal935 agreement was never consummated and the stations were never sold.

The McCoy affidavit states that to further impair Magic, the Magic board sold the Dothan, Alabama radio station cluster for $1.85 million in 2011. McCoy asserts that Magic had originally invested $12 to $16 million in those stations and that they had a value of at least $6 million when Durden caused them to be sold. He states that there was no reasonable, rational reason to sell the stations for such a low price and that selling the stations at such a low price was unfair, unreasonable, and contrary to the Magic operating agreement.

Appellants, as members of Magic, filed a derivative action against the appellees seeking, in Count I, damages for negligently breaching the duty of care owed to all members of Magic; in Count II, damages for breaching a fiduciary duty owed to Magic and its members; and, in Count III, an accounting.

In September 2012, appellees filed their motion for summary judgment and supporting affidavit. In February 2013, appellants filed a memorandum in opposition to the motion for summary judgment and supporting affidavit. In appellants’ memorandum in opposition, appellants withdrew their negligence claim (Count I) and their claims related to misconduct occurring pri- or to the adoption of the amended operating agreement.

On April 8, 2013, the trial court entered the order granting summary final judgment in favor of the appellees. The trial court concluded that there was no genuine issue of material fact and that, as a matter of law: (1) appellees did not violate the duty of loyalty imposed by section 608.4225, Florida Statutes, and the operating agreement; (2) appellees did not commit “willful misconduct” in violation of their fiduciary duties; (3) Durden was immune from personal liability because the Magic board, of which he was a member, appointed him as CEO of the company, in which capacity he committed the tortious acts; and (4) lenders (DEI and DE2) could not be liable for breach of fiduciary duties. This appeal ensued.

Fiduciwy Duty

Under Florida’s common law, the Florida Supreme Court has defined the concept of fiduciary duties broadly reflecting its historical origin in equity. In Quinn v. Phipps, 93 Fla. 805, 113 So. 419 (1927), a case involving allegations that a real estate broker had violated his fiduciary duty, the Court explained the basis of the duty:

The term ‘fiduciary or confidential relation,’ is a very broad one. It has been said that it exists, and that relief is granted, in all cases in which influence has been acquired and abused — in which confidence has been reposed and betrayed. The origin of the confidence is immaterial. The rule embraces both technical fiduciary relations and those informal relations which exist wherever one man trusts in and relies upon another.
Stripped of all embellishing verbiage, it may be confidently asserted that every instance in which a confidential or fiduciary relation in fact is shown to exist will be interpreted as such. The relation and duties involved need not be legal; they may be moral, social, domestic or personal. If a relation of trust and confidence exists between the parties (that is to say, where confidence is reposed by one party and a trust accepted by the other, or where confidence has been acquired and abused), that is sufficient as a predicate for relief. The origin of the confidence is immaterial.

Id. at 420-21; see also Doe v. Evans, 814 So.2d 370, 374 (Fla.2002) (quoting Restatement (Second) of Torts § 874 cmt. a) (“A fiduciary relation exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of that relation.”).

As early as 1907, the Court recognized that under the Florida common law a director was in a fiduciary relationship with the corporation. See Jacksonville Cigar Co. v. Dozier, 53 Fla. 1059, 1065-68, 43 So. 523, 525 (1907). Other early Florida cases described the relationship between a corporation and its directors and officers as involving:

a quasi fiduciary relation to the corporation and its stockholders.... They are required to act in the utmost good faith, and in accepting the office they impliedly undertake to give to the enterprise the benefit of their best care and judgment, and to exercise the powers conferred solely in the interest of the corporation.

Orlando Orange Groves Co. v. Hale, 107 Fla. 304, 313-14, 144 So. 674, 677 (1932) (citations omitted). Florida courts have continued to describe the duties of a director and an officer to the corporation as arising from trust and equity concepts. In Snead v. U.S. Trucking Corp., 380 So.2d 1075, 1078-79 (Fla. 1st DCA 1980), we explained:

A director’s duties being trust duties or in the nature of the duties of a trustee toward his cestui que trust, his acts are subject to be tested by the rules governing the relation of a trustee to his cestui que trust.... He is bound to act with fidelity, the utmost good faith, and with his private and personal interests subordinated to his trust duty whenever the two come in conflict. Courts of equity must enforce strict compliance with these rules.

(citation omitted).

In short, Florida courts have recognized that corporate officers and directors owe both a duty of loyalty and a duty of care to the corporation that they serve. See Cohen v. Hattaway, 595 So.2d 105 (Fla. 5th DCA 1992); B & J Holding Corp. v. Weiss, 353 So.2d 141 (Fla. 3d DCA 1978).

Although unrelated to fiduciary duty concepts, Florida courts have also recognized that “[e]very contract includes not only its written provisions, but also the terms and matters which, though not actually expressed, are implied by law, and these are as binding as the terms which are actually written or spoken.” First Nationwide Bank v. Florida Software Servs., Inc., 770 F.Supp. 1537, 1542 (M.D.Fla. 1991). One of the implied contract terms recognized in Florida law is the implied covenant of good faith, fair dealing, and commercial reasonableness. Cox v. CSX Intermodal, Inc., 732 So.2d 1092, 1097 (Fla. 1st DCA 1999); see also Schech v. Burger King Corp., 798 F.Supp. 692, 700 (S.D.Fla.1992); First Nationwide Bank, 770 F.Supp. at 1542; Green Companies, Inc. v. Kendall Racquetball Invs., Ltd., 560 So.2d 1208, 1210 (Fla. 3d DCA 1990); Fernandez v. Vazquez, 397 So.2d 1171, 1173-74 (Fla. 3d DCA 1981). This implied covenant arises because “[a] contract is an agreement whereby each party promises to perform their part of the bargain in good faith, and expects the other party to do the same.” First Nationwide Bank, 770 F.Supp. at 1544. Thus, the implied covenant of good faith and fair dealing is designed to protect the contracting parties’ reasonable expectations. Cox, 732 So.2d at 1097.

Cox described the covenant as a constraint upon the discretion granted to one party under the terms of the contract. Id. at 1097-98.

Thus, where the terms of the contract afford a party substantial discretion to promote that party’s self-interest, the duty to act in good faith nevertheless limits that party’s ability to act capriciously to contravene the reasonable contractual expectations of the other party.

Id. Although.the covenant arises from a contract, the implied covenant of good faith and fair dealing cannot be used to vary the express terms of a contract. Id. at 1098; see also Mount Sinai Med. Ctr. of Greater Miami, Inc. v. Heidrick & Struggles, Inc., 188 Fed.Appx. 966 (11th Cir.2006).

The LLC Act

The LLC Act has codified the law of fiduciary duties in an LLC. Under section 608.4225(1), Florida Statutes (2011),

[s]ubject to ss. 608.4226 and 608.423, each 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.

The LLC Act has restricted the duty of loyalty, however. Under subsection 1(a) of section 608.4225,

[s]ubject to s. 608.4226, the duty of loyalty is limited to:
1. Accounting to the limited liability company and holding as trustee for the limited liability company any property, profit, or benefit derived by such manager or managing member in the conduct or winding up of the limited liability company business or derived from a use by such manager or managing member of limited liability company property, including the appropriation of a limited liability company opportunity.
2. Refraining from dealing with the limited liability company in the conduct or winding up of the limited liability company business as or on behalf of a party having an interest adverse to the limited liability company.
3. Refraining from competing with the limited liability company in the conduct of the limited liability company business before the dissolution of the limited liability company.

Section 608.4225(l)(b) also limits the duty of care to refraining from engaging in grossly negligent or reckless conduct, intentional misconduct, or a knowing violation of law. Section 608.4225(l)(c) incorporates the concepts of good faith and fair dealing by requiring that each manager and managing member discharge the duties to the LLC and its members under chapter 608 or under the articles of organization or operating agreement and exercise any rights “consistent with the obligation of good faith and fair dealing.”

Section 608.4226 addresses conflicts of interest transactions, which it defines in subsection (1) as a:

contract or other transaction between a limited liability company and one or more of its members, managers, or managing members or any other limited liability company, corporation, firm, association, or entity in which one or more of its members, managers, or managing members are managers, managing members, directors, or officers or are financially interested.

A conflict of interest is not “either void or voidable because of such relationship” if:

(a) The fact of such relationship or interest is disclosed or known to the managers or managing members or committee which authorizes, approves, or ratifies the contract or transaction by a vote or consent sufficient for the purpose without counting the votes or consents of such interested members, managers, or managing members;
(b) The fact of such relationship or interest is disclosed or known to the members entitled to vote and they authorize, approve, or ratify such contract or transaction by vote or written consent; or
(c) The contract or transaction is fair and reasonable as to the limited liability company at the time it is authorized by the managers, managing members, a committee, or the members.

Thus, under section 608.423, members of an LLC can enter into an operating agreement to “establish duties in addition to those set forth in [chapter 608], and to govern relations among the members, managers, and company.” § 608.423(1), Fla. Stat. (2011). Nevertheless, under section 608.423 an operating agreement may not:

(a) Unreasonably restrict a right to information or access to records under s. 608.4101;
(b) Eliminate the duty of loyalty under s. 608.4225, but the agreement may:
1. Identify specific types or categories of activities that do not violate the duty of loyalty, if not manifestly unreasonable; and
2. Specify the number or percentage of members or disinterested managers that may authorize or ratify, after full disclosure of all material facts, a specific act or transaction that otherwise would violate the duty of loyalty;
(c) Unreasonably reduce the duty of care under s. 608.4225;
(d) Eliminate the obligation of good faith and fair dealing under s. 608.4225, but the operating agreement may determine the standards by which the performance of the obligation is to be measured, if the standards are not manifestly unreasonable[.]

The Magic Operating Agreement

Pursuant to section 608.423, the parties entered into an operating agreement which modified the fiduciary duties applicable to Magic. The operating agreement gives effect to the LLC Act and provides guideposts for measuring the conduct of the parties. For example, paragraph 5.4 of the operating agreement generally provides that “[t]he Manager shall exercise the powers granted hereby in a fiduciary capacity and in the best interests of the Company and its Subsidiaries.” Nevertheless, paragraph 5.6(a) of the operating agreement provides:

Except as otherwise provided herein, ... no present or former Manager nor any such Manager’s Affiliates, officers, directors, employees, agents or representatives shall be liable to the Company ... for any act or omission performed or omitted by such Person in his, her or its capacity as Manager; provided that ... such limitation of liability shall not apply to the extent the act or omission was attributable to such Person’s willful misconduct or knowing violation of law.

Paragraph 5.6(b) also allows broad discretion to the board:

At such time as the Board is the Manager, whenever in this Agreement ... the Board is permitted or required to take any action or to make a decision or determination, the Board shall take such action or make such decision or determination in its sole discretion, unless another standard is expressly set forth herein....

Section 5.6(c) of the operating agreement sets forth a complex assortment of waivers, acknowledgements, and agreements relating to conflicts of interest and breaches of the duty of care and duty of loyalty. As for a waiver, section 5.6(c) provides that, to the maximum extent permitted by the LLC Act, Magic and each member of Magic waive any claim against each manager and member of Magic and their affiliates for breach of any fiduciary duty to Magic or its members, including claims as may result from a conflict of interest among Magic, the managers, and the members. Further, in section 5.6(c) each member agrees that “in the event of any such conflict of interest, each such Person may act in the best interests of such Person or its Affiliates, employees, agents and representatives.”

In addition, in section 5.6(c):

The Members agree (i) that the standard of duty of care and duty of loyalty, as well as the obligations of good faith and fair dealing, required under the Act will be satisfied so long as a Manager or Member believes that the terms of any contract or transaction giving rise to a conflict of interest were not unfair or unreasonable to the Company, (ii) the rights and interests of all other parties in interest may be taken into account in discharging such duties and obligations, including Members and their Affiliates who may be creditors or employees of the Company or persons contracting therewith, and (iii) that this standard is not unreasonable and otheiiuise complies with Section 608.^23 of the Act.

(emphasis added).

Finally, this section sets forth an example of the type of conflict of interest transaction contemplated by the parties:

By way of example only, in the event the Board were considering two alternative proposals for an Approved Sale, the Board could consider, among other things, such facts as the Company’s state of affairs and financial status, contingencies present in competing proposals, the identities, reputation and financial soundness of other parties to the proposed transaction, the rights and in-tei*ests of the other parties to the proposed transaction (including Affiliates of the Manager or Member), the relative uncertainties of the competing proposals, the nature of the consideration offered in the competing proposals, and any other facts as the Board deems relevant in its sole discretion, and could reasonably conclude that a competing proposal offering less consideration was in the best interest of the Company and should be an Approved Sale, notwithstanding that certain Classes of Members might benefit less, if at all, from the Approved Sale relative to the benefit such Classes would have received from an alternative competing proposal(s).

Paragraph 5.6(c) also seeks to identify types of conflict of interest transactions that do not violate the duty of care, duty of loyalty, and obligations of good faith and fair dealing under the LLC Act. It expressly provides that those standards will be deemed to be satisfied so long as a Manager or Member believes that the terms of any conflict of interest transaction “were not unfair or unreasonable to the Company ...” and that “this standard is not unreasonable and otherwise complies with section 608.423 of the Act.”

Summary Judgment

We review orders granting summary judgment de novo. Dianne v. Wingate, 84 So.3d 427, 429 (Fla. 1st DCA 2012). The court’s “task is to determine whether, after reviewing every inference in favor of [a]p-pellants as the non-moving party, no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law.” Id. “If there is even the slightest doubt that material factual issues remain, summary judgment may not be entered.” Alpha Data Corp. v. HX5, L.L.C., 139 So.3d 907, 910 (Fla. 1st DCA 2013). As we have previously instructed:

A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.... If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.

Feizi v. Dep’t of Mgmt. Servs., 988 So.2d 1192, 1193 (Fla. 1st DCA 2008) (quoting Moore v. Morris, 475 So.2d 666, 668 (Fla.1985)).

We hold disputed issues of material fact remain concerning whether appellees engaged in “willful misconduct” under the operating agreement. We agree with appellants that the trial court either weighed the evidence or summarily drew its own inferences from the evidence by finding as a matter of law and fact that no “willful misconduct” had been committed. Thus, the trial court subjugated the role of the jury to determine issues of fact as to the commission of “willful misconduct.” See Taylor v. Wellington Station Condo. Ass'n, Inc., 633 So.2d 43, 44 (Fla. 5th DCA 1994) (stating “[sjince the Association’s motion and complaint requested a finding that Taylor was liable to the Association for willfully breaching his fiduciary duty, the trial court would necessarily have to make a finding that Taylor acted with intent in order to grant the motion.”) (emphasis in original).

REVERSED and REMANDED for further proceedings consistent with this opinion.

WOLF, J., concurs, and MARSTILLER, J., dissents with opinion.

MARSTILLER, J.,

dissenting.

I respectfully dissent, and would affirm the final summary judgment under review, because there remained no factual disputes.

The main alleged breach of fiduciary duty for which Appellants seek recovery is the decision by Michael Durden and other Magic board members (not named in the lawsuit) to reject McCoy’s offer to purchase two of Magic’s radio stations for $62 million — the same two radio stations Magic bought in part with a $65 million loan from DE1/DE2 — and spin them off to an independent McCoy-created business entity. The considerations for the trial court on Appellees’ motion for summary judgment were whether any factual disputes existed, and if not, whether the undisputed facts could support a claim for liability under the pertinent statutory provisions in the Limited Liability Company (“LLC”) Act and under the terms of the amended operating agreement approved by the members of Magic. The majority holds that summary judgment was inappropriate here because factual issues remain as to whether “appellees engaged in ‘willful misconduct’ under the operating agreement.” (Maj. op. at 17.) I disagree for the following reasons.

Section 5.6 of the agreement contains the operative liability provision, and reads, in pertinent part:

(a) Except as otherwise provided herein or in any agreement entered into by such Person and the Company and to the maximum extent permitted by the Act and any other applicable law, no present or former Manager nor any such Manager’s Affiliates, officers, directors, employees, agents or representatives shall be liable to the Company, its Subsidiaries or to any Member for any act or omission performed or omitted by such Person in his, her or its capacity as Manager; provided that, except as otherwise provided herein, such limitation of liability shall not apply to the extent the act or omission was attributable to such Person’s willful misconduct or knowing violation of law as determined by a final judgment, order or decree of an arbitrator or a court of competent jurisdiction^] ...

(Underlining in original; italics supplied.)

It is undisputed that neither DEI nor DE2 holds the capacity of manager for Magic. Consequently, the provision assigning liability for willful misconduct does not apply to those appellees. The trial court was correct to so conclude and enter summary judgment in their favor.

The provision does apply to Michael Durden, who was both a member of Magic’s board and its CEO, and, thus, a manager. But the conclusory allegations in McCoy’s affidavit, submitted in opposition to Appellees’ summary judgment motion, are insufficient to create disputed issues of fact as to willful misconduct by Michael Durden.

Most of the assertions in the affidavit are directed to “the Board” or “the Dur-dens.” Specific to Michael Durden, McCoy averred:

14. With control of the Board, the Dur-dens installed Michael Durden as Chief Executive] Officer of the company, who immediately began to take actions that were intentional, unreasonable, unfair to the company, and apparently to set Magic up for failure. For example: [Here, subparagraphs a through e mention only actions taken by “the Durdens” and Earl Durden,, but not by Michael Durden.]
15. The mismanagement of Magic by Michael Durden and the Durden-con-trolled Board did, in fact, negatively impact the company’s performance, causing Magic to be unable to meet the Durden imposed EBITDA payment requirements.
21. At a Board meeting on May 17, 2010, Magic’s Board discussed the prospect of my proposed buy-out. The Board rejected my proposal out-of-hand, with total disregard of the obligations set forth in Paragraph [sic] Paragraphs 5.1(f), 5.4 and 5.6 of the Amended and Restated Operating Agreement. In fact, during the meeting, Michael Dur-den proclaimed, “We would never sell the stations to McCoy.” The Board did not consider any of the factors set forth in Paragraphs 5.6 of the Amended Operating Agreement, nor did the Board follow the procedures required by that section. It was clear that Michael Dur-den never intended to abide by the principles of good faith and fair dealing by meaningfully considering my proposal.

(Emphasis in original.) “Conclusory, general assertions do not create the factual disputes necessary to avoid summary judgment.” Ramsey v. Home Depot U.S.A., Inc., 124 So.3d 415, 418 (Fla. 1st DCA 2013). All of the above-quoted statements are merely conclusory assertions, and, as such, do not yield factual disputes about alleged willful misconduct by Michael Dur-den.

Appellants’ main contention in this lawsuit is that “the Board, led and controlled by Michael Durden,” wrongfully rejected McCoy’s proposal to buy the two Los An-geles radio stations for $62 million in favor of another proposal for only $35 million. But even assuming this assertion concerning a decision by the board could serve as grounds for Michael Durden, individually, to be held liable for willful misconduct, Appellants alleged no specific facts establishing that such misconduct occurred.

McCoy’s affidavit states, “The Board rejected my proposal out-of-hand, with total disregard of the obligations set forth in Paragraph [sic] Paragraphs 5.1(f), 5.4 and 5.6 of the Amended and Restated Operating Agreement.” Paragraph 5.1(f) of the operating agreement states:

The validity of any transaction, agreement or payment involving the Company and its Subsidiaries and the Manager or any Affiliate of the Manager otherwise permitted by the terms of this agreement or necessary or desirable in connection with the Company’s or its Subsidiaries’ business, shall not be affected by reason of such relationship between the Company and the Manager or between the Manager and such affiliate, provided such transaction, agreement or payment is (i) disclosed to each member of the Board ... and (ii) on terms that are fair and reasonable to the Company and otherwise complies with this agreement and the Act. Any transaction between the Company and its Subsidiaries, and the Manager or its affiliates, shall also be effected on such terms and conditions as are commercially. reasonable and proper.

Paragraph 5.4 states, in pertinent part, “The Manager shall exercise the powers granted hereby in a fiduciary capacity and in the best interests of the Company and its Subsidiaries.”

Paragraph 5.6(c), which defines the duties of care, loyalty, good faith and fair dealing as applied to conflicts of interest, contemplates the very scenario that occurred here, and states:

The Members agree (i) that the standard of duty of care and duty of loyalty, as well as the obligations of good faith and fair dealing, required under the Act will be satisfied so long as a Manager or Member believes that the terms of any contract or transaction giving rise to a conflict of interest were not unfair or unreasonable to the Company, (ii) the rights and interests of all other parties in interest may be taken into account in discharging such duties and obligations, including Members and their Affiliates who may be creditors or employees of the Company or persons contracting therewith, and (iii) that this standard is not unreasonable and otherwise complies with Section 608.423 of the [LLC] Act.... By way of example only, in the event the Board were considering two alternative proposals for an Approved Sale, the Board could consider, among other things, such facts as the Company’s state of affairs and financial status, contingencies present in competing proposals, the identities, reputation and financial soundness of other parties to the proposed transaction, the rights and interests of the other parties to the proposed transaction (including Affiliates of the Manager or Member), the relative uncertainties of the competing proposals, the nature of the consideration offered in the competing proposals, and any other facts as the Board deems relevant in its sole discretion, and could reasonably conclude that a competing proposal offering less consideration was in the best interest of the Company and should be approved[.]

(Emphasis added.)

Generally asserting that the board disregarded its obligations under paragraphs 5.1(f) and 5.4 of the operating agreement does not, without more,. give rise to a material factual dispute. Indeed, it is unclear how paragraph 5.1(f) even applies to the board decision at issue; McCoy’s affidavit provides no specifics. Similarly, the affidavit merely asserts that “The Board did not consider any of the factors set forth in Paragraphs 5.6 of the Amended Operating Agreement!)]” Not only is the assertion conclusory, and, therefore, incapable of creating a material factual dispute, paragraph 5.6(c) does not, by its plain terms, require consideration of any particular factors, such that failure to consider them could constitute willful misconduct.

Furthermore, none of the allegations in McCoy’s affidavit demonstrate how the 48-month-option-to-purchase proposal would have been of greater benefit to Magic than the competing proposal, except to say that “[t]he Socal935 proposal was vastly inferi- or because the offer by Socal935 was 27 million less than my [McCoy’s] offer, and Magic would still have been liable for the remainder of the Durden Enterprises Loan.” Appellants’ complaint indicates the Socal935 proposal was for $5 million cash at closing plus a $30 million note (held by which entity, it is not known) at six percent interest. The McCoy proposal, on the other hand, did not include immediate purchase of the Los Angeles radio stations. Rather, McCoy’s newly-created independent entity would manage the two stations for a period of 48 months, during which time this entity would keep all revenues attributable to the stations; the new entity would make graduated interest-only payments to Magic, but not beginning until the seventh month; at the end of the 48-month period the new entity would have the option to purchase the stations for $62 million; that the $62 million would constitute payment in full of Magic’s indebtedness to DE2, even if there remained a balance; and DE2’s interests in Magic would be acquired by McCoy’s new entity. Given the latitude and discretion the board had under paragraph 5.6(c) to reject McCoy’s proposal despite any apparent conflict of interest, McCoy’s affidavit simply fails to support a charge of willful misconduct.

Absent some specific, non-conclusory allegation of willful misconduct by Michael Durden, there was no factual dispute precluding summary judgment in his favor. And the trial court correctly found that the undisputed facts failed to establish a basis for holding Michael Durden liable to Appellants.

For the foregoing reasons, the final summary judgment the trial court entered in Appellees’ favor is correct, and this court should affirm.

      . Appellees have not challenged appellants’ ability to bring this action as a derivative action. See Dinuro Invs., LLC v. Camacho, 141 So.3d 731 (Fla. 3d DCA 2014).

      . In 2013, the LLC Act was substantially revised. See Laws of Fla. 2013, ch. 2013-180, § 2; sections 605.0101-605.1108, Fla. Stat. (2014). The Revised LLC Act is effective January 1, 2015, and has no application to the case under review.

      . It is undisputed that all claims arising prior to the date of the amended operating agreement are waived by the members of Magic pursuant to the amended operating agreement.

      . The Florida common law concept of fiduciary duty is similar to Justice Cardozo’s description of fiduciary duty in Meinhard v. Salmon, 249 N.Y. 458, 463-64, 164 N.E. 545, 546 (1928).
      Joint adventurers, like copartners, owe to one another, while the enterprise continues, the duty of the finest loyalty. Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior.