author: PER CURIAM. SAWAYA, J.,

text:
    GEICO CASUALTY COMPANY, Petitioner, v. Antonio BARBER, Respondent.
    No. 5D14-427.
    District Court of Appeal of Florida, Fifth District.
    Aug. 15, 2014.
    Rehearing Denied Sept. 19, 2014.

      Mitchell N. Silver and Melissa E. Morgan, of The Silver Law Firm, P.A., Long-wood, for Petitioner.
    Christian A. Lindbaek and Eric S. Gillin, of Gillin Gillin & Lindbaek P.A., Melbourne, for Respondent.
   PER CURIAM.

GEICO Casualty Company seeks certio-rari review of the trial court’s “Order on Plaintiffs Motion to Amend Pleadings and Defendant’s Motion for Entry of Final Judgment.” We grant the writ and quash the order.

In February 2009, Antonio Barber filed a complaint against GEICO for uninsured/underinsured motorist (“UM”) benefits following an automobile accident. He also filed a Civil Remedy Notice (“CRN”) as authorized by section 624.155, Florida Statutes (2008), alleging that he sustained serious and permanent injuries exceeding his UM policy limits. GEICO answered the complaint and responded to the CRN, stating that based on its investigation, which included a review of Barber’s medical records, it would not offer policy limits.

After, learning Barber had undergone surgery several years later, GEICO served a policy limits proposal for settlement pursuant to Florida Rule of Civil Procedure 1.442 and section 768.79, Florida Statutes (2008). Barber did not accept the proposal. GEICO then filed a “Notice of Confession of Judgment and Motion for Entry of Confessed Judgment” stating:

Defendant GEICO CASUALTY COMPANY hereby confesses judgment to the Plaintiff for its policy limits of Ten Thousand Dollars ($10,000.00) in lieu of the pending jury trial as all issues as framed by the pleadings are rendered moot. See Safeco Insurance Company of Illinois v. Adrian Fridman, 117 So.3d 16 (Fla. 5th DCA 2013).

Before the trial court ruled on GEICO’s motion to enter judgment, Barber filed a motion to amend his complaint to assert separate claims for uninsured motorist benefits, violations of section 624.155, Florida Statutes (2008), and a declaratory judgment to determine liability and the total amount of damages he sustained in the accident. Following several hearings, the trial court entered an order, granting GEICO’s motion to enter final judgment on the UM claim based on its confession of judgment. The court also granted Barber’s motion to amend pleadings to add a count for declaratory relief, but found Barber’s request to add a bad faith claim was not ripe. As a result, Barber filed a second amended complaint, seeking only a declaratory judgment to determine the “apportionment of liability, if any and ... the total amount of damages suffered by [Barber].” The trial court allowed Barber to file his second amended complaint and GEICO now petitions this Court for review.

Relying on this Court’s decision in Safeco Insurance Co. v. Fridman, 117 So.3d 16 (Fla. 5th DCA 2013), review granted, No. SC13-1607, 2014 WL 1659750 (Fla. Apr. 14, 2014), GEICO argues that the trial court’s order departs from the essential requirements of the law and should be quashed. GEICO contends that after it confessed to judgment, the trial court lacked jurisdiction to take any action other than to enter judgment in the amount of the UM policy limits in favor of Barber. We agree.

As we explained in Fridman,

An action to recover UM benefits is based on a contract but it has its underpinnings in tort liability. Mercury Ins. Co. of Fla. v. Moreta, 957 So.2d 1242, 1251 (Fla. 2d DCA 2007). Where no dispute exists as to the policy limits or available coverage and such limits are made known to the insured, the amount of the judgment against the insurer may not exceed the policy limits. Nationwide Mut. Fire Ins. Co. v. Voigt, 971 So.2d 239, 242 (Fla. 2d DCA 2008).
A first party bad faith action is a separate and distinct cause of action. Allstate Ins. Co. v. Jenkins, 32 So.3d 163, 165 (Fla. 5th DCA 2010). In contrast to a claim for UM benefits, an insured who prevails on a bad faith claim may recover damages in excess of the policy limits.
In the instant case, the only cause of action before the trial court was Frid-man’s UM claim. Fridman had appropriately not included a bad faith count in his complaint. See Jenkins, 32 So.3d at 165 (“[B]ad faith action is more appropriately brought as a separate cause of action.”); see also Gov’t Emps. Ins. Co. v. King, 68 So.3d 267, 270 n. 3 (Fla. 2d DCA 2011) (en banc) (expressly agreeing with Jenkins that bad faith claim should be brought as separate cause of action). Accordingly, when Safeco agreed to the entry of a judgment against it in the amount of the policy limits, the issues between the parties, as framed by the pleadings, became moot because the trial court could not provide any further substantive relief to Fridman. Godwin v. State, 593 So.2d 211, 212 (Fla.1992) (“An issue is moot when the controversy has been so fully resolved that a judicial determination can have no actual effect.”). Safeco was, in fact, agreeing to the precise relief sought by Fridman in his complaint. Thus, it was error for the trial court to require the parties to proceed to trial. See, e.g., Wollard v. Lloyd’s & Cos. of Lloyd’s, 439 So.2d 217 (Fla.1983) (where statute provided for recovery of attorney’s fees upon entry of judgment in favor of insured against insurer, insured was not required to continue litigation where insurer had paid claim; payment of claim was functional equivalent of confession of judgment). Instead, the trial court should have merely entered the confessed judgment in favor of Frid-man, reserving jurisdiction to award costs, prejudgment interest, and, if authorized by law, reasonable attorney’s fees. See Westgate Miami Beach, LTD. v. Newport Operating Corp., 55 So.3d 567, 575 (Fla.2010).

117 So.3d at 19-20.

Although the court only had jurisdiction to enter the confessed judgment, Barber is not precluded from litigating the damages issue on his bad-faith claim, as the judgment entered in this case based on GEICO’s contractual obligations under the policy is separate and distinct from Barber’s claim for bad faith. See Harris v. Geico Gen. Ins. Co., 961 F.Supp.2d 1223, 1233 (S.D.Fla.2013); see also GEICO Gen. Ins. Co. v. Harvey, 109 So.3d 236, 240 (Fla. 4th DCA 2013) (“The Florida Supreme Court has repeatedly recognized that a claim arising from bad faith is grounded upon the legal duty to act in good faith, and is thus separate and independent of the claim arising from the contractual obligation to perform.” (Citation and internal quotation marks omitted)).

For these reasons, we quash the order on review.

PETITION GRANTED; WRIT ISSUED; ORDER QUASHED.

PALMER and ORFINGER, JJ., concur.

SAWAYA, J., dissents with opinion.

SAWAYA, J.,

dissenting.

The decision in Safeco Insurance Co. v. Fridman, 117 So.3d 16 (Fla. 5th DCA 2013), review granted, No. SC13-1607, 2014 WL 1659750 (Fla. Apr. 14, 2014), which I continue to believe is wrongly decided, is distinguishable from the instant case. I, therefore, believe the majority’s reliance on it is misplaced. I also believe that the majority has lost sight of the proper standard of certiorari review to be applied in this case.

Fridman is distinguishable because in that case, there was never any attempt to amend the plaintiffs complaint to allege a cause of action for bad faith after Safeco tendered its policy limits. But in the instant case, after GEICO tendered the full amount of its policy limits (some four years into the litigation) the Respondent, Antonio Barber (who was the plaintiff in the trial proceedings), filed a motion to amend his complaint to add a count for bad faith and a count for declaratory judgment. This motion was made before the trial court heard GEICO’s motion for judgment wherein GEICO cited to Fridman and alleged that it had confessed judgment and requested entry of a judgment in favor of Barber in the amount of the tendered policy limits. In fact, both motions were heard simultaneously. The trial court denied Barber’s motion to amend the complaint to add a bad-faith count, but granted the motion to add the declaratory judgment count.

In a case strikingly similar to the instant case, the court in Safeco Insurance Co. of Illinois v. Rader, 132 So.3d 941 (Fla. 1st DCA 2014), held that when an insurer tenders the policy limits in an uninsured motorist case and the insured moves to amend the complaint to insert a count for bad faith, such an amendment is permissible because the trial court maintains jurisdiction to do so. The court in Rader distinguished Fridman by recognizing that no such motion to amend was made by the insured in Fridman. The holding in Rad-er directly conflicts with the majority opinion in the instant case, which interprets Fridman to mean that once the insurer tenders the policy limits, the trial court loses jurisdiction to do anything other than enter judgment for that amount. The majority opinion and Fridman both conflict with well-established rules of procedure that liberally allow amendments to pleadings. See Fla. R. Civ. P. 1. 190; see also Spectrum Interiors, Inc. v. Exterior Walls, Inc., 65 So.3d 543, 546 (Fla. 5th DCA 2011) (observing the general rule is to freely grant leave to amend); Crown v. Chase Home Fin., 41 So.3d 978, 979 (Fla. 5th DCA 2010) (same).

Thus, pursuant to Rader, the trial court should have granted Barber’s motion to amend to include a count for bad faith. Instead, the trial court denied that motion and granted the motion to amend to include a count for declaratory relief. If this was error, the error can certainly be corrected on appeal. The courts have clearly and consistently held that an appellate court can only grant a petition for certiora-ri when it is established that there is “ ‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.’ ” Rodriguez v. Miami-Dade Cnty., 117 So.3d 400, 406 (Fla.2013) (quoting Williams v. Oken, 62 So.3d 1129, 1132 (Fla.2011)). The court in Rodriguez held that the latter two elements, which are referred to as irreparable harm, are jurisdictional, id., and explained:

The threshold question that must be, reached first [when determining whether to grant certiorari] is whether there is a material injury that cannot be corrected on appeal, otherwise termed as irreparable harm. Only after irreparable harm has been established can an appellate court then review whether the petitioner has also shown a departure from the essential requirements of law.

Id. at 404 (citation omitted); see also Rader, 132 So.3d at 944-45. Therefore, GEI-CO’s petition for writ of certiorari should be denied because any error in granting the motion to amend can be corrected on appeal.

The majority holds, based on its interpretation of Fridman, that once the policy limits are tendered (Fridman refers to such a tender as a confession of judgment), the trial court lost all jurisdiction, except to enter the confessed judgment. This is simply wrong. The majority then holds that “Barber is not precluded from litigating the damages issue on his bad-faith claim.... ” But that is exactly what Barber was appropriately doing in the UM case. The holdings of the majority in the instant case and Fridman do not comport with how the Florida Supreme Court and the Legislature say bad-faith actions should be conducted. Section 627.727(10), Florida Statutes (2008), specifically provides that the damages recoverable in an action against the UM carrier “include the total amount of the claimant’s damages, including the amount in excess of the policy limits,” and that those damages are recoverable “whether caused by an insurer or by a third-party tortfeasor.” The determination of the amount in excess of the policy limits is established by the jury verdict in the original UM case, and the Florida Supreme Court has made that clear. See State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55 (Fla.1995).

In Laforet, the insured was injured in an automobile accident and carried UM coverage in the amount of $200,000 through a policy issued by State Farm. The insured filed a UM case against State Farm, which offered $40,000 to settle the claim. That offer was refused by the insured. The case proceeded to trial, resulting in a jury verdict in the insured’s favor for damages in the amount of $400,000. With the verdict in hand, the insured filed a bad-faith action against State Farm. At the time this suit was filed, section 627.727(10) had not been enacted. Therefore, the jury returned a verdict that did not include the excess amount as damages. On the same day the verdict was returned, section 627.727(10) became effective, so the insured filed a motion for additur to include the excess amount of the damages determined in the underlying UM case. That motion was granted. State Farm appealed, claiming that the statute should not be retroactively applied.

The court analyzed section 627.727(10) to determine whether it could be applied retroactively to causes of action that accrued prior to its enactment. Through that analysis, the court twice determined that the amount in excess of the policy limits is established in the original UM case. The court stated:

Section 627.727(10) provides that the damages recoverable from an uninsured motorist insurance carrier in a bad faith action brought under section 624.155 and the 1990 amendment thereto shall include the total amount of a claimant’s damages, including any amount in excess of the claimant’s policy limits awarded by a judge or jury in the underlying claim.

Laforet, 658 So.2d at 56-57 (emphasis added). The court repeated its determination that the excess amount is to be determined in the underlying UM case, noting that on July 7,1992,

section 627.727(10) became law. That statute provides that the damages recoverable from an uninsured motorist carrier in a bad faith action filed under section 624.155, such as the one at issue here, are to include the total amount of the claimant’s damages, including any amount awarded in the underlying claim in excess of the claimant’s policy limits.

Id. at 57 (emphasis added). The court then explained that the issue of retroactivity was determinative because “under the retroactive application of the new statute, State Farm was liable for the entire excess judgment awarded to the Laforets in their original case against State Farm.” Id. (emphasis added). Thus, the court in La-foret made it clear that application of section 627.727(10) requires that, in a bád-faith action, the court shall award the excess amount determined in the underlying UM case.

The court in Laforet also determined that the provision in the statute “the amount in excess of the policy limit” means the excess amount determined in the original UM case. Id. at 60. Similarly, in McLeod v. Continental Insurance Co., 591 So.2d 621 (Fla.1992), superceded by statute as stated in Time Ins. Co., Inc. v. Burger, 712 So.2d 389, 392 (Fla.1998) (“That legislation [section 627.727(10) ] merely overturned the holding of McLeod by authorizing the recovery of the ‘excess judgment’ in first-party bad-faith actions against uninsured motorist insurance carriers.”), the court explained excess judgments as follows:

McLeod appealed, arguing that the trial court erred in not granting his motion for directed verdict or, in the alternative, by refusing to instruct the jury that McLeod’s damages were fixed at the $200,000 shortfall between all available insurance coverage and the amount of the verdict in the wrongful death action. This amount is commonly referred to as the “excess judgment” and is an available remedy in third-party bad faith actions.

Id. at 623 (emphasis added) (footnote omitted).

Once Barber served his Civil Remedy Notice under section 624.155(3)(a), Florida Statutes (2008), as a condition precedent to bringing a bad-faith action, GEICO had sixty days to pay the damages owed and cure the alleged violation. § 624.155(3)(d), Fla. Stat. (2008). In Talat Enterprises, Inc. v. Aetna Casualty & Surety Co., 753 So.2d 1278 (Fla.2000), the Florida Supreme Court explained, “[I]n creating this statutory remedy for bad-faith actions, the Legislature provided this sixty-day window as a last opportunity for insurers to comply with their claim-handling obligations when a good-faith decision by the insurer would indicate that contractual benefits are owed.” Id. at 1284; see also Lane v. Westfield Ins. Co., 862 So.2d 774, 779 (Fla. 5th DCA 2003) (quoting Talat and concluding that “[t]he purpose of the civil remedy notice is to give the insurer one last chance to settle a claim with its insured and avoid unnecessary bad faith litigation ...”). Barber served GEICO with two notices under the statute. The first elicited a response from GEICO that no benefits under the policy were owed. The second, which was also served pre-suit, elicited an offer from GEICO to pay the paltry sum of $700. Barber rejected that offer and filed his UM suit. Several years into the litigation, GEICO decided to pay the policy limits. This was too little too late, and that action on the part of GEICO several years past expiration of the sixty-day cure provision did not extinguish the trial court’s jurisdiction and Barber’s right to proceed with his UM case and have the jury decide the full extent of his damages.

The majority states that the bad-faith action is independent of the underlying UM case. But that is because the issues in the bad-faith action are different from the issues in the underlying UM case. The issues in the UM case are whether the tortfeasor breached a duty of care that caused damages and the extent of those damages. Florida Standard Jury Instruction (Civil) 404.7 sets forth the pertinent issues in bad-faith claims against insurers as follows: “The issue you must decide on (claimant’s) claim against (defendant) is whether (defendant) acted in bad faith in failing to settle the claim [of] [against] (insured) [and, if so, whether that bad faith was a legal cause of [loss] [damage] [or] [harm] to (claimant) ].” The Note on Use for this instruction recognizes that in a bad-faith action, the damages in excess of the policy limits are assessed by the jury in the uninsured/underinsured motorist action: “For cases in which the court will determine damages, or the only damages are those already determined in the underlying action, omit the bracketed phase [sic] on causation. If the issue of damages is being submitted to the jury for determination, then the entire instruction should be given.” Fla. Stat. Jury Instr. (Civ.) 404.7 (Note on Use) (emphasis added). The issues in the bad-faith action should not include the issue of damages suffered as a result of the tortfeasor’s negligence because the evidence is different. There is too great a danger that the evidence of the insurer’s claim file and evidence of its bad faith in failing to fairly settle the claim and pay the insured the benefits owed to him or her under the policy would unduly prejudice the jury in its determination of the amount of the damages inflicted on the insured by the tortfeasor, and this is why the damage issues should not be tried in the bad-faith action.

I believe that this court in Fridman and the majority in the instant case misapply the confession of judgment doctrine. The only case cited in Fridman relating to the confession of judgment issue is Wollard v. Lloyd’s & Cos. of Lloyd’s, 439 So.2d 217, 218 (Fla.1983), wherein the court held that the agreement of an insurer to settle a claim is the functional equivalent of a judgment for purposes of awarding attorneys fees under section 627.428, Florida Statutes, which provides that the insured shall be entitled to fees “[u]pon the rendition of a judgment ... against an insurer....” In other words, the court indulged the legal fiction of a judgment based on the settlement offer in order to award fees under the statute. Since Wollard, the courts have consistently held that is the proper application of the doctrine. See, e.g., Tampa Chiropractic Ctr., Inc. v. State Farm Mut. Auto. Ins. Co., 141 So.3d 1256 (Fla. 5th DCA 2014); Lopez v. State Farm Mut. Auto., 139 So.3d 402 (Fla. 3d DCA 2014); State Farm Fla. Ins. Co. v. Lorenzo, 969 So.2d 393 (Fla. 5th DCA 2007). In Tampa Chiropractic, this court explained the doctrine as follows:

Section 627.428 provides for the award of attorney’s fees to an insured upon the rendition of a judgment against an insurer in an action between the insurer and its insured. § 627.428, Fla. Stat. “By using the legal fiction of a ‘confession of judgment,’ our supreme court extended the statute’s application” to cases in which the insurer settles or pays a disputed claim before rendition of judgment. Basik Exports & Imports, Inc. v. Preferred Nat’l Ins. Co., 911 So.2d 291, 293 (Fla. 4th DCA 2005) (citing Wollard v. Lloyd’s & Cos. of Lloyd's, 439 So.2d 217 (Fla.1983)). When the insurer has agreed to settle a disputed case, “it has, in effect, declined to defend its position in the pending suit,” and its “payment of the claim is ... the functional equivalent of a confession of judgment or a verdict in favor of the insured.” Wollard) 439 So.2d at 218. For the confession of judgment doctrine to apply, the insurer must have unreasonably withheld payment under the policy, id. at 219 n. 2, or engaged in some other wrongful behavior that forced the insured to sue, Gov’t Emps. Ins. Co. v. Battaglia, 503 So.2d 358, 360 (Fla. 5th DCA 1987); see also Jerkins v. USF & G Specialty Ins. Co., 982 So.2d 15, 17 (Fla. 5th DCA 2008). This Court has described the rationale for the confession of judgment doctrine as follows:
[T]he statutory obligation for attorney’s fees cannot be avoided [by the insurer] simply by paying the policy proceeds after suit is filed but before a judgment is actually entered because to so construe [section 627.428, Florida Statutes,] would do violence to its purpose, which is to discourage litigation and encourage prompt disposition of valid insurance claims without litigation.

Gibson v. Walker, 380 So.2d 531, 533 (Fla. 5th DCA 1980); accord First Floridian Auto & Home Ins. Co. v. Myrick, 969 So.2d 1121,1124 (Fla. 2d DCA 2007) (noting that confession of judgment doctrine operates “to penalize an insurance company for wrongfully causing its insured to resort to litigation in order to resolve a conflict with its insurer when it was within the company’s power to resolve it”); Cincinnati Ins. Co. v. Palmer, 297 So.2d 96, 99 (Fla. 4th DCA 1974) (“[I]t is neither reasonable nor just that an insurer can avoid liability for statutory attorney’s fees by the simple expedient of paying the insurance proceeds to the insured or the beneficiary at some point after suit is filed but before final judgment is entered, thereby making unnecessary the entry of a judgment.”). 141 So.3d at 1259 (footnote omitted); see also Lorenzo, 969 So.2d at 397 (“The confession of judgment doctrine turns on the policy underlying section 627.428: discouraging insurers from contesting valid claims and reimbursing insureds for attorney’s fees when they must sue to receive the benefits owed to them. Pepper’s Steel & Alloys, Inc. v. United States, 850 So.2d 462, 465 (Fla.2003). This doctrine applies where the insurer has denied benefits the insured was entitled to, forcing the insured to file suit, resulting in -the insurer’s change of heart and payment before judgment.”).

Thus the confession of judgment doctrine is intended to penalize the insurer for causing its insured to resort to litigation when it should have previously paid the benefits due under the policy. And when the insurer subsequently attempts to pay the benefits, a legal fiction is indulged that transforms the tender of benefits or settlement offer into a judgment that forms the basis for an award of fees under section 627.428. Despite the purpose of the doctrine, this court in Fridman has utilized this legal fiction to penalize insureds by taking away their right to have a jury decide the full measure of their damages in the UM cáse and further penalizing them by requiring them to file a new lawsuit to litigate the same damage issues all over again. I believe this is an improper use of the confession of judgment doctrine.

I do not believe that the UM and bad-faith statutes were intended to allow insurers to treat their insureds in the manner that the insureds in Fridman and the instant case have been treated. The injured insureds in both cases spent several years litigating the damage issues in the UM cases each filed, only to have the insurers tender the policy limits and eliminate their right to continue on with the litigation so the jury could determine the full extent of their damages. And the end result is to require both insureds to do it all over again in another action involving the same parties and the same damage issues they were litigating in the UM case. I believe that allowing insurers to conduct litigation in this manner defies all logic and common sense, contravenes the fundamental principles underlying the UM and bad faith statutes, and improperly ignores the last chance provisions of section 624.155(3)(a), thus rendering that statute virtually meaningless. “ ‘The UM statute is intended to protect injured people and is not intended to benefit insurance companies or motorists who cause damage to other people.’ ” Sommerville v. Allstate Ins. Co., 65 So.3d 558, 561-62 (Fla. 2d DCA 2011) (quoting Varro v. Federated Mut. Ins. Co., 854 So.2d 726, 729 (Fla. 2d DCA 2003) (citations omitted)); see also Flores v. Allstate Ins. Co., 819 So.2d 740, 745 (Fla.2002) (“ ‘The statute is designed for the protection of injured persons, not for the benefit of insurance companies or motorists who cause damage to others.’ ” (quoting Young v. Progressive Se. Ins. Co., 753 So.2d 80, 83 (Fla.2000))). The bad-faith statute is intended to protect insureds from insurers who act in bad faith in handling claims made under the pertinent insurance policy. As part of that protection, an injured insured has the right to have a jury determine the full extent of his or her damages in the UM case so the insured may pursue a bad-faith action against its insurer for failing to timely pay in good faith the policy benefits within the sixty-day window period provided under section 624.155(3)(a). These statutes are not intended to be utilized as a charade whereby insurers are allowed, through the expedient of a fictional confession of judgment made years into the litigation, to push and pull their insureds from one lawsuit to another only to require the insureds to try the same damage issues all over again.

      . Even GEICO implicitly recognizes that the alleged error in granting the motion to amend may be corrected on appeal, so in order to avoid that jurisdictional hurdle, GEICO alleges it will suffer irreparable harm because the trial court order allowing the amendment deprives GEICO of its right to remove the state court action to federal court. I believe that this argument has little merit. This court has held that certiorari would not lie to protect a litigant’s right to remove a state court action to federal court. Cont'l Baking Co. v. Vincent, 634 So.2d 242, 244 (Fla. 5th DCA 1994); see also Rader, 132 So.3d at 945-46. Moreover, GEICO cannot show that it has suffered irreparable harm under the federal removal statute, which is found in 28 U.S.C. § 1446. The courts have explained that under that statute,
      a defendant may only remove within thirty days of receiving the initial pleading or service of summons. In a case not originally removable, a defendant may only remove within thirty days of receiving "an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which ... has become removable.” 28 U.S.C. § 1446(b)(3). However, a case removed based on diversity jurisdiction that was not initially removable may not be removed more than one year after the commencement of the action.

        Barroso v. Allstate Prop. & Cas. Ins. Co., 958 F.Supp.2d 1344, 1345 (M.D.Fla.2013).
      In Bollinger v. State Farm Mutual Insurance Co., 538 Fed.Appx. 857 (11th Cir.2013), the court held that the thirty-day time limit under § 1446 begins to run when the state court grants a motion for leave to amend the complaint to add a bad-faith claim. But here, the trial court denied Barber’s motion to amend to add a bad-faith action. Therefore, any claim of irreparable injury is premature until a bad-faith action is filed. Although the court in Bollinger did not specifically address the “one year after commencement of the action” time limit provided in the statute, it did implicitly hold that the one-year period begins to run when the complaint is amended to include a count for bad faith. But even if "commencement of the action” is interpreted to mean the filing of the original complaint (in the instant case that date would be February 2009 when the UM case was filed), GEI-CO lost the right to remove the action in February 2010, long before Barber moved to amend his complaint and long before GEICO confessed its judgment. Therefore, any harm suffered by GEICO under the latter interpretation was of its own making, not Barber’s.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Peter George CHRISTENSEN, Former Husband, Appellant, v. Tanya Raquel CHRISTENSEN, Former Wife, Appellee.
    No. 1D14-735.
    District Court of Appeal of Florida, First District.
    Aug. 18, 2014.

      Brian P. North, Mary Esther, for Appellant.
    Natalie A. Tuttle, Florida Coastal School of Law, Family Law Clinic, Jacksonville, for Appellee.
   PER CURIAM.

Peter George Christensen, the former husband, appeals the final judgment of dissolution that dissolved his eighteen-year marriage with Tanya Raquel Christensen, the former wife. Mr. Christensen raises multiple issues on appeal, but we find merit in only one; his claim of error regarding the trial court’s calculation of the parties’ child support obligations. We affirm all other issues without further comment.

“In a dissolution of marriage case such as this one, in which alimony is required because of the disparity in income between the parties, the court must first determine the amount of alimony and then, considering alimony as income, determine the amount of child support.” Pike v. Pike, 932 So.2d 229, 230 (Fla. 4th DCA 2005); § 61.30(2)(a)9., Fla. Stat. (2012). Here, the trial court failed to include its award of alimony as part of Mrs. Christensen’s income when it calculated Mr. Christensen’s child support obligation. Moreover, the trial court also adjusted the parties’ child support obligation based on the assumption that Mrs. Christensen would exercise a substantial amount of time-sharing pursuant to section 61.30(ll)(b), Florida Statutes (2012). However, it is unclear from the court’s visitation order whether Mrs. Christensen will exercise the statutorily required amount of visitation. We reverse the trial court’s child support determination and remand with directions to calculate the support obligation taking into account Mrs. Christensen’s income from alimony and to reconsider whether the substantial time-sharing adjustment is applicable to these parties. If necessary, the trial court is permitted to reconsider its visitation order when making this determination. We affirm all other issues raised on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.

WOLF, ROWE, and OSTERHAUS, JJ„ concur.


text:
    Jerrold STEWART, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3136.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2014.

      Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, Jerrold Stewart, appeals his conviction and sentence for one count of sexual battery on a person 12 years of age or older but less than 18 years of age (A.S.) while in a position of familial authority contrary to section 794.011(8)(b), Fla. Stat. (2010). On appeal, he argues that the trial court erred in denying his motion for new trial following inflammatory prose-cutorial comments during closing. He also argues that the trial court erred in allowing the State to present irrelevant, prejudicial “bad acts” evidence. We disagree and affirm.

Prior to the appellant’s trial for sexual battery against A.S., the State filed a Williams rule notice that it intended to introduce evidence of acts against two other victims. The first set of acts occurred between 1991 and 1997 against S.C., the appellant’s step-daughter, who was between the ages of seven and 13. The notice alleged instances of digital penetration in the family home, most of which occurred while S.C. was sleeping. The second set of acts occurred between 1997 and 1999 against B.S., the appellant’s wife’s daughter, who was between the ages of nine and 10. The notice alleged instances of digital penetration in the family home and that, on one occasion, the appellant snuck into B.S.’s bedroom and attempted to molest B.S. while she slept.

The appellant filed a motion to exclude the evidence. Following a hearing, the trial court entered an order granting admission of the Williams rule evidence that made the following findings. The incidents involving S.C. and B.S. were proven by clear and convincing evidence. The probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. The trial court stated that it was “aware that S.C. and B.S.’s cases differ somewhat from the victim’s allegations in the instant case,” but noted that the strict similarity requirement between the charged and collateral offenses had been abrogated by section 90.402(2)(b), Florida Statutes (2010). The evidence showed an underlying pattern of molestation where the appellant was in a familial or custodial setting with the victims and the molestation occurred in the home. The appellant’s attempts occurred most often when the victims were asleep, and the victims were all underage females. The appellant’s pattern of behavior demonstrated a modus operandi, an absence of mistake, intent, opportunity, and plan.

The case proceeded to trial. A.S., the appellant’s biological daughter, gave the following testimony. In 2010, when, she was 17 years old, she had her wisdom teeth removed under anesthesia. The appellant drove A.S. home from surgery and took her inside the family home to her bedroom. A.S. was still groggy from the anesthesia. While the appellant was changing her clothes, A.S. felt the appellant touch her vagina and place either his finger or his penis in her vagina. About five to 10 minutes later, the appellant left the room, and A.S. fell asleep. When she awoke and went to the bathroom, she had a burning sensation while urinating and noticed blood in her underwear. A.S. confided in her half-sister, S.C., and an aunt, and law enforcement was eventually called.

The State proffered S.C.’s testimony, and the trial court heard argument from both sides regarding the admissibility of the testimony. The trial court allowed some of the proffered testimony, but restricted other testimony that it believed would be prejudicial. After the trial court provided the jury with a limiting instruction on the Williams rule evidence, S.C. testified to the following. While S.C. lived with the appellant, he would come into her room while she was sleeping, and she could feel him touching her vagina. On one occasion when she was 12 years old, she awoke, and the appellant had his fingers in her vagina. On another occasion when S.C. was 10 years old, her mother walked into her room at night and saw the appellant with his finger in her vagina.

The State then introduced other testimony including an FDLE expert who testified that semen was identified on A.S.’s vaginal swab and underwear. A DNA analyst also testified that a partial male profile was obtained from A.S.’s underwear that was consistent with the appellant to the extent that 0.177 percent of males would have the same DNA profile.

The State then proffered the testimony of B.S. The trial court again heard argument on the admissibility of the evidence. The trial court articulated the appropriate legal standard for consideration and explained its decision to allow B.S.’s testimony. The trial court again gave a limiting instruction on the Williams rule evidence prior to B.S.’s testimony. B.S. testified that she lived with the appellant between the ages of eight and 12. When she was between the ages of 10 and 11, the appellant digitally penetrated her on several occasions in the family home. On one occasion, the appellant came into her bedroom while she was sleeping. She awoke and confronted the appellant, who made an excuse for being in the room and left.

In closing arguments, the prosecutor stated:

The State is not asking you, and there is no box to check whether or not [the appellant is] guilty of anything he did to [B.S.] or [S.C.]. Today is about [A.S.], it’s about what he did to his daughter. I went ahead and put together a little bit of a flow chart of the family, because I know there was confusion, there are a lot of people, and it took both the State, and I believe the defense, and I put together who everyone was in that house, and when they’re all living there. The males are blue, the females are pink. And today you heard from [S.C.], [B.S.], and [A.S.], the only daughter left in that house is [D.S.], who is three. That’s why that evidence is so important. To prove that intent, to prove that motive, to prove that opportunity, the absence of mistake. This is the family that’s left.
When you’re asked to deliberate and think about this case, please remember that your job is not to feel bias or sympathy for anyone, for the defendant, for the victims. We’re not asking you to convict him of the crime because you feel bad that some girls came in here and were upset. We’re asking you to convict because they were molested and raped.

Defense counsel objected to the statements and moved for a mistrial. Defense counsel argued that the prosecutor’s statements, which had been made while she was highlighting a PowerPoint family tree, made the obvious suggestion that D.S., the appellant’s three-year-old biological child, was the only female who had not yet been molested. Defense counsel argued that the comments inappropriately suggested the appellant’s propensity and constituted a “call to arms” to the jury that if it did not convict, the appellant would molest D.S.

The State responded that it had addressed the limited use of Williams rule evidence and that the prosecutor’s statement was a literal statement of the evidence regarding who remained in the home and the fact that D.S. had not been molested. The trial court denied the motion for mistrial. The jury was again provided with a limiting instruction on the Williams rule evidence and returned a verdict finding the appellant guilty as charged.

The appellant filed a motion for new trial arguing, among other things, that the trial court erred in allowing the Williams rule evidence and denying the appellant’s motion for mistrial based upon the State’s improper closing argument. The trial court denied the motion for new trial.

On appeal, the appellant first argues that the trial court erred in denying his motion for new trial when the State inflamed the jury during its closing argument. We review the trial court’s denial of the motion for mistrial following allegedly improper prosecutorial comments for an abuse of discretion. See Salazar v. State, 991 So.2d 364, 371 (Fla.2008). “In order for [a] prosecutor’s comments to merit a new trial, the comments must deprive the defendant' of a fair and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise.” Spencer v. State, 645 So.2d 377, 383 (Fla. 1994).

Finding this issue sufficiently preserved for appeal, we find that the prosecutor’s comments were not so inflammatory and prejudicial that they warranted a new trial. The context of the prosecutor’s closing shows that she created a PowerPoint family tree to document the familial relationships. Rather than a “call to arms,” the prosecutor’s comments can reasonably be considered a literal comment on the evidence. Specifically, the fact that D.S., who was three, was the only non-testifying daughter currently living in the home. The prosecutor’s statements are not so prejudicial so as to vitiate the entire trial and warrant reversal. The comments do not rise to the level of a character attack warranting a new trial. The cases relied on by the appellant involve prosecutorial comments that are much more egregious than those in the instant case. Cf. Chambers v. State, 924 So.2d 975 (Fla. 2d DCA 2006) (finding the prosecutorial commentary on the defendant’s immoral and improper relationship with 16-year-old victim in burglary, assault, and robbery prosecution that did not involve the age of the victim was an improper and irrelevant character attack); Petruschke v. State, 125 So.3d 274 (Fla. 4th DCA 2013) (reversing lewd and lascivious molestation conviction due to, among other things, collective effect of prosecutorial comments that included repeatedly referring to the defendant as a pedophile). Moreover, even if we were to consider the comment improper, the isolated nature of the comment coupled with the evidence presented at trial would not have constituted reversible error. Cf. Jenkins v. State, 96 So.3d 1110 (Fla. 1st DCA 2012) (finding prosecutor’s comment, although improper, was isolated and not grounds for a mistrial).

The appellant’s second issue on appeal argues that the trial court erred in admitting the Williams rule evidence that did nothing more than show his propensity and bad character. We review the admissibility of evidence for an abuse of discretion. See Easterly v. State, 22 So.3d 807, 814 (Fla. 1st DCA 2009).

In Williams, the Florida Supreme Court laid out the initial benchmark for admitting evidence of other crimes, wrongs, or acts: “[RJelevant evidence will not be excluded merely because it relates to similar facts which point to the commission of a separate crime. The test of admissibility is relevancy. The test of inadmissibility is a lack of relevancy.” 110 So.2d at 659-60 (Fla.1959). This holding was later codified in the Florida Statutes:

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

§ 90.404(2)(a), Fla. Stat. (2010).

As an initial matter, the trial court must find that the prior acts were proven by clear and convincing evidence. See Mclean v. State, 934 So.2d 1248, 1262 (Fla. 2006).

The Legislature has adopted a “relaxed standard of admissibility” with regard to Williams rule evidence in child molestation cases. See Easterly, 22 So.3d at 814. That standard provides:

in a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

§ 90.404(2)(b)l., Fla. Stat. (2010).

The enactment of the relaxed standard of admissibility means that relevance of Williams rule evidence in these cases will not primarily turn on an analysis of the similarity of the offenses. See McLean, 934 So.2d at 1259 (explaining that section 90.404(2)(b) “broadly provides that evidence of the defendant’s commission of other acts of child molestation is admissible regardless of whether the charged and collateral offenses ... share any similarity.”). This does not mean, however, that the similarity of the offenses is completely removed from the trial court’s analysis. See Easterly, 22 So.3d at 815 (stating that even under the relaxed standard the evidence is subject to relevancy requirements and the section 90.403 balancing test, which means that the similarity of the charged offense to the collateral offenses is still important).

The appellant argues that the trial court failed to recognize that the Williams rule evidence was more dissimilar than similar, making it more prejudicial than probative. He cites the following dissimilarities: S.C. and B.S. were much younger when the acts occurred; the acts against S.C. and B.S. occurred in the 1990s and were not temporally close to the acts against A.S.; A.S. alleged penile penetration whereas S.C. and B.S. claimed digital penetration; A.S. was under the influence of anesthesia; and finally S.C. and B.S. were not the appellant’s biological children.

The trial court properly found that the testimony of S.C. and B.S. was proven by clear and convincing evidence. The crux of the appellant’s argument places a heavy focus on the dissimilarities of the evidence; however, “ ‘similar’ does not mean ‘exactly the same.’” See Adkins v. State, 605 So.2d 915, 919 (Fla. 1st DCA 1992). Here, the victims were all underage females when the acts occurred. The acts occurred in the family home while the appellant was in a custodial or familial role. In addition, the acts primarily occurred when the victims were vulnerable, either sleeping or under the effects of anesthesia. The fact that the acts against S.C. and B.S. involved digital penetration rather than penile penetration is not necessarily dispositive. See id. The trial court appropriately considered all the factors in determining that the evidence was admissible. The appellant has failed to demonstrate that the evidence was so dissimilar as to justify disturbing the trial court’s ruling.

The evidence also did not become an impermissible feature of the trial. Evidence becomes a feature of the trial when it “transcend[s] the bounds of relevancy to the charge being tried and the prosecution devolves from development of facts pertinent to the main issue of guilt or innocence into an assault on the character of the defendant.” Easterly, 22 So.3d at 815 (citing Conde v. State, 860 So.2d 930, 935 (Fla.2003)). Here, the State did not overly focus on the evidence in its arguments. Moreover, the jury was instructed on multiple occasions as to the limited purpose of the Williams rule evidence.

For the foregoing reasons, the appellant’s conviction is AFFIRMED.

WOLF and ROWE, JJ., and PARKER, GREGORY S., Associate Judge, concur.

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


author: SALTER, J.

text:
    Omar ROMAY, et al., Appellants/Cross-Appellees v. CARIBEVISION HOLDINGS, INC., et al., Appellees/Cross-Appellants.
    No. 3D14-292.
    District Court of Appeal of Florida, Third District.
    Aug. 27, 2014.
    Rehearing Denied Oct. 1, 2014.
    Gelber Schachter & Greenberg, and Adam M. Schacter, Dan Gelber, Freddy Funess and David M. Rogero, Coral Gables, for appellarits/cross-appellees.
    Dorta & Ortega and Trida Neimand, Coral Gables, for appellees/cross-appel-lants.
    Before WELLS, SALTER and FERNANDEZ, JJ.
   SALTER, J.

Twelve parties to a circuit court lawsuit appeal or cross-appeal a non-final order appointing a “referee” for the primary purpose of “facilitating the corporate board meetings” of a Delaware corporation (America-CV Station Group, Inc.), and a Delaware limited liability company (America-CV Network, LLC), each based in Hi-, aleah Gardens, Florida. The plaintiffs in the case, appellees here, moved for the dissolution of the America-CV entities and for the appointment of a receiver or custodian pendente lite. We affirm the trial court’s order on appeal and cross-appeal, writing only to address one aspect of the court’s order.

The Romay Parties and the Caribevision Parties

The circuit court lawsuit is essentially a corporate divorce. The six plaintiffs below, appellees and cross-appellants here, are referred to as the “Caribevision Interests.” These parties included a corporation and two limited liability companies organized in Delaware, two Mexican corporations, and a Spanish corporation, all having direct or indirect interests in producing and broadcasting television programs in the Caribbean.

The defendants below that have appealed the non-final order are Florida residents and corporations led by Omar Ro-may, referred to as the “Romay Interests.” In 2009 and 2010, the Caribevision Interests and Romay Interests entered into what was ostensibly a.50%-50% joint venture to produce and broadcast television programs in Spanish to viewers in Miami, New York, and Puerto Rico. The parties formed the America-CV entities in Delaware, but with corporate offices in Hialeah Gardens, as the entities to carry out the purposes of the joint venture.

Under the amended shareholders’ and operating agreements for the America-CV entities, the ownership interests were divided equally between the Caribevision Interests and Romay Interests, and board and management interests were allocated in a similar manner. As acting chief executive officer of the America-CV entities, however, Omar Romay was also granted a tie-breaking vote.

The Caribevision and Romay principals later disagreed regarding the operations and financial commitments of the America-CV entities. The ventures could not conduct board meetings because they could not muster the quorum required in their organizing documents. Claims of financial wrongdoing and conflicts of interest were asserted. In 2011, the Caribevision Interests filed a complaint seeking damages from Romay and others, and ultimately a third amended complaint alleged that the America-CV entities were hopelessly deadlocked. In mid-2018, the Cari-bevision Interests moved for dissolution of, and appointment of a receiver for, the America-CV entities pursuant to Delaware law and the entities’ organizing documents. The trial court granted the motion in part, and denied it in part, and this appeal and cross-appeal from that non-final order ensued.

Analysis

The trial court conducted a series of hearings on the receivership issue, ultimately concluding that the America-CV entities “are threatened with substantial irreparable harm as a result of the inability to hold board meetings.” We conclude that this determination was based on competent, substantial evidence and thus affirm on that issue. McCormick v. Cox, 118 So.3d 980 (Fla. 3d DCA 2013).

The hearing transcripts indicate that the trial court was reluctant to appoint a receiver for the entities in Florida, given the primacy of Delaware law. Instead, the court appointed a “referee” for the purposes of “facilitating the corporate board meetings,” assuring compliance with the governing agreements, and determining “whether a board member must be excluded from casting a vote on any matter wherein a conflict of interest is alleged, subject to review by this Court upon application of any party.” The referee was granted access to all corporate records “reasonably necessary to conduct an investigation of contested resolutions and corporate acts.” The referee was also given the power to act as an ongoing mediator and was to report to the Court on all of these tasks.

The Romay Interests argue here that the Florida trial court lacked jurisdiction to grant such relief with respect to the entities, organized as they were in Delaware, contending that the Florida court thereby impermissibly regulates “the organization or internal affairs of a foreign corporation.” § 607.1505(3), Fla. Stat. (2013). The trial court’s appointment of a “referee” instead of a receiver — in the exercise of the court’s inherent equitable powers — reflects concern over the degree of authority that might be exercised in Florida by a corporate receiver for an entity organized in Delaware.

In fact, however, Florida’s Business Corporations Act and Limited Liability Company Act expressly authorize a Florida court to appoint an ancillary receiver here for a foreign entity “even though no receiver has been appointed elsewhere.”

Section 607.1432(6), Florida Statutes (2013), states:

The court has jurisdiction to appoint an ancillary receiver for the assets and business of a corporation. The ancillary receiver shall serve ancillary to a receiver located in any other state, whenever the court deems that circumstances exist requiring the appointment of such a receiver. The court may appoint such an ancillary receiver for a foreign corporation even though no receiver has been appointed elsewhere. Such receivership shall be converted into an ancillary receivership when an order entered by a court of competent jurisdiction in the other state provides for a receivership of the corporation.

Similarly, section 608.4492(6), Florida Statutes (2013), states:

The court has jurisdiction to appoint an ancillary receiver for the assets and business of a limited liability company. The ancillary receiver shall serve ancillary to a receiver located in any other state, whenever the court deems that circumstances exist requiring the appointment of such a receiver. The court may appoint such an ancillary receiver for a foreign limited liability company even though no receiver has been appointed elsewhere. Such receivership shall be converted into an ancillary receivership when an order entered by a court of competent jurisdiction in the other state provides for a receivership of the limited liability company.

These provisions recognize that a foreign company with an office, property, and operations in Florida may require local supervision even before a “primary” receivership is commenced in the state of incorporation. If and when a receivership order is entered in Delaware, the Florida receivership in this case would become “ancillary.”

We reject the Romay Interests’ contention that the trial court exceeded its jurisdiction and equitable authority in appointing a referee, because the parties directly addressed those issues during the hearings. On the Caribevision Interests’ cross-appeal (claiming error in that portion of the order denying the appointment of a receiver or custodian pendente lite), we also conclude that the trial court did not err. The motion and pleadings sought relief under the law of Delaware, the organizing documents, and the trial court’s equitable authority, rather than the Florida statutes cited above. BAC Home Loans Servicing, Inc. v. Headley, 130 So.3d 703, 705 (Fla. 3d DCA 2013) (party entitled to notice and due process based on a proper pleading). On remand, the Caribevision Interests may file a renewed motion seeking such relief under Florida law or (if they have not already done so) seeking relief in the chancery court in Delaware. We express no opinion regarding the appropriateness or outcome of any such actions.

Affirmed as to both the appeal and the cross-appeal.


author: FEIGENBAUM, B.A., Associate Judge.

text:
    Mark Jeffrey GRANT, Appellant, v. Denise Jardin ROTOLANTE, Appellee.
    No. 5D13-3288.
    District Court of Appeal of Florida, Fifth District.
    Aug. 29, 2014.
    Rehearing Denied Sept. 22, 2014.

      Gary R. Irwin, of Gary Irwin & Assoc., LLC, Naples, for Appellant.
    Allan P. Whitehead, of Frese, Hansen, Anderson, Anderson, Heuston & Whitehead, P.A., Melbourne, for Appellee.
   FEIGENBAUM, B.A., Associate Judge.

Mark Jeffrey Grant appeals the trial court’s confirmation of the Financial Industry Regulatory Authority (“FINRA”) arbitration award entered in favor of Denise Jardín Rotolante. We find that Mr. Grant was not obligated to arbitrate Ms. Rotolante’s claims, and therefore, reverse.

Mr. Grant and Ms. Rotolante were friends and neighbors. Mr. Grant is a FINRA Registered Representative per Securities and Exchange Commission Rule 17 C.F.R. § 240.15b7-l. He has more than thirty-eight years’ experience in the securities industry, and is a published author and commentator on investment subjects. When Ms. Rotolante learned about Mr. Grant’s experience in securities, she spoke to him about her finances. According to Mr. Grant, as a friendly neighbor, he advised her to obtain a job, downsize her home, or both. When she rejected this advice, he suggested, but did not endorse due to high risk, that she could obtain a mortgage on her $1.2 million home, use it to pay off her high interest debt, and invest the remainder. Ms. Roto-lante ultimately chose that route.

Based on Mr. Grant’s recommendations, Ms. Rotolante obtained a home mortgage with Bank of America (“the bank”), invested the proceeds with its investment banking subsidiary, and used one of the bank’s FINRA Registered Representatives as her financial advisor for the new investment account. She deposited hundreds of thousands of dollars into that investment account, paid fees and commissions to the bank, and engaged in many securities transactions with the bank. The bank provided all of Ms. Rotolante’s account records and statements. Ms. Rotolante never opened an account with Mr. Grant, deposited any money or securities with Mr. Grant, purchased or sold any securities from or through Mr. Grant, or paid Mr. Grant any compensation. Further, the bank never paid Mr. Grant any commission or referral fee. Still, in the following years, Mr. Grant reviewed Ms. Rotolante’s investment portfolios, attended various meetings with Ms. Rotolante and the bank’s financial advisor, and repeatedly gave her financial recommendations regarding her investment portfolio, which, at times, conflicted with the financial advis- or’s advice. In 2008, Ms. Rotolante suffered losses related to her investments, which included preferred shares of Fannie Mae, Freddie Mac, and Lehman Brothers.

Thereafter, Ms. Rotolante commenced a FINRA arbitration against Mr. Grant and others related to her failed investments. A three-member FINRA arbitration panel heard the parties’ evidence and argument, and found it had jurisdiction to consider Ms. Rotolante’s claim because Mr. Grant “is required to submit to arbitration pursuant to the [FINRA Customer] Code and, having answered the claim, is bound by the determination of the Panel on all issues submitted.” The panel subsequently entered an award for Ms. Rotolante and against Mr. Grant on several of her claims, awarding $49,000 in compensatory damages, together with interest, attorney’s fees and part of the filing fee.

Ms. Rotolante subsequently petitioned the trial court to confirm the FINRA arbitration award and enter judgment. In response, Mr. Grant sought to remove the case to the federal district court pursuant to 28 U.S.C. § 1441. The district court sent the case back to the state court for lack of subject matter jurisdiction. See Grant v. Rotolante, No. 6:13-cv-168-Orl-TBS, slip op. at 9-17, 2018 WL 2155076 (M.D.Fla. May 17, 2013). Back in state court, Mr. Grant challenged the arbitration award, arguing that Ms. Rotolante’s claims against him were not arbitrable. The court disagreed and confirmed the FINRA arbitration award. On appeal, Mr. Grant asserts that he was not required to arbitrate Ms. Rotolante’s claim. He argues that the panel did not have jurisdiction to conclusively decide the arbitrability of this matter and that Ms. Rotolante was not his “customer,” a prerequisite for invoking arbitration under the FINRA Rules.

1. Arbitrability

The arbitrability of the merits and the question of who decides arbitrability depend on the agreement of the parties. See First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 943, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). “But, unlike the arbitrability of claims in general, whether the court or the arbitrator decides arbitra-bility is an issue for judicial determination unless the parties clearly and unmistakably provide otherwise.” Oracle Am., Inc. v. Myriad Grp. A.G., 724 F.3d 1069, 1072 (9th Cir.2013) (internal quotation marks and citations omitted). Thus, “there is a presumption that courts will decide which issues are arbitrable.” Id. The mere fact that Mr. Grant is a FINRA member does not provide “clear and unmistakable” evidence that he consented to FINRA determination on the issue of arbitrability. As there was no evidence that Mr. Grant intended the panel would determine the issue of arbitrability, the presumption that the court will decide which issues are arbi-trable remains unrebutted. See Goldman, Sachs & Co. v. City of Reno, 747 F.3d 733, 738-39 (9th Cir.2014). Accordingly, the court must determine whether this particular dispute is arbitrable. As the resolution of arbitrability turns only on questions of law, our review is de novo. See, e.g., First Options, 514 U.S. at 947-48, 115 S.Ct. 1920; Coady v. Ashcraft & Gerel, 223 F.3d 1, 10 (1st Cir.2000); SCG Harbourwood, LLC v. Hanyan, 93 So.3d 1197, 1199 (Fla. 2d DCA 2012); Fla. Envtl. Servs., Inc. v. Rentoumis, 950 So.2d 466, 470 (Fla. 4th DCA 2007).

In determining whether Ms. Roto-lante’s claim is arbitrable, the Federal Arbitration Act (“FAA”), not the Florida Arbitration Code (“FAC”), applies. The FAA, 9 U.S.C. §§ 1 to 16, creates a body of federal substantive law that is applicable in both state and federal courts. See Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995). It provides concurrent jurisdiction to state courts to enforce arbitration agreements with a federal forum available only when diversity or federal question jurisdiction is otherwise established. See 9 U.S.C. § 4; Vaden v. Discover Bank, 556 U.S. 49, 59, 129 S.Ct. 1262, 173 L.Ed.2d 206 (2009) (reiterating that FAA does not bestow federal jurisdiction but requires independent jurisdictional basis for access to federal forum). However, under the Supremacy Clause of the United States Constitution, the FAA supersedes inconsistent provisions of state law and state courts must enforce the FAA when it applies. See, e.g., id.; Della Pennav. Zabawa, 931 So.2d 155, 160 n. 3 (Fla. 5th DCA 2006).

“The FAA applies to any contract ‘affecting’ interstate commerce.” Klay v. All Defendants, 389 F.3d 1191, 1200 n. 9 (11th Cir.2004) (quoting Dobson, 513 U.S. at 273-74, 115 S.Ct. 834). Here, this matter involves securities, which plainly implicates interstate commerce, and thus, the FAA, not the FAC, applies. See Qubty v. Nagda, 817 So.2d 952, 956 (Fla. 5th DCA 2002) (“Brokerage contracts concerning the sale of securities have been consistently treated as contracts involving interstate commerce.”). Even if the FAC applied, in cases involving interstate commerce, the FAC would apply only to the extent that it' is not in conflict with the FAA. See, e.g., Shotts v. OP Winter Haven, Inc., 86 So.3d 456, 463-64 (Fla.2011); Qubty, 817 So.2d at 955-56.

Under the FAA, in determining the threshold issue of arbitrability, courts consider whether the party opposing confirmation objected throughout the arbitration proceeding. See, e.g., Czarina, L.L.C. v. W.F. Poe Syndicate, 358 F.3d 1286, 1294 (11th Cir.2004); Avis Rent A Car Sys. v. Garage Emps. Union, 791 F.2d 22, 26 (2d Cir.1986). In Kaplan v. First Options of Chicago, Inc., 19 F.3d 1503, 1510 (3d Cir. 1994), the Third Circuit held that “where a party objects to arbitrability but nevertheless voluntarily participates in the arbitration proceedings, waiver of the challenge to arbitral jurisdiction will not be inferred.” In that case, after the arbitrator rejected the plaintiffs’ objection to arbitration, they participated in the .arbitration on

the merits and lost. In affirming, the United States Supreme Court concluded that since the plaintiffs had “forcefully objected] to the arbitrators deciding their dispute,” they had not clearly agreed to submit the issue of arbitrability to arbitration. First Options, 514 U.S. at 946, 115 S.Ct. 1920; see also China Minmetals Materials Imp. & Exp. Co. v. Chi Mei Corp., 334 F.3d 274, 291-92 (3d Cir.2003) (holding that although party participated in arbitration, even presenting argument on merits, it had not waived its objection to arbitrator’s jurisdiction because it consistently objected to arbitrator’s jurisdiction throughout proceedings”); Eleanor L. Grossman, Annotation, Participation in Arbitration Proceedings as Waiver of Objections to Arbitrability Under State Law, 56 A.L.R.5th 757 (1998) (collecting cases in which courts have discussed whether, or under what circumstances, party’s participation in arbitration proceeding may result in waiver of that party’s right subsequently to raise arbitrability issue).

In the instant case, Ms. Rotolante contends that Mr. Grant waived his objections to arbitration. However, at the outset of the arbitration hearing, and throughout the four-day arbitration hearing, Mr. Grant objected to the panel’s jurisdiction. Therefore, while Mr. Grant had other options to challenge the panel’s authority, he did not waive his objection to the panel’s jurisdiction under the FAA. See, e.g., Local 36 Sheet Metal Workers’ Int’l Ass’n v. Whitney, 670 F.3d 865, 868 (8th Cir.2012) (describing four methods party may employ to challenge arbitrator’s authority: (i) object to arbitrator’s authority but proceed to merits before arbitrator, while expressly reserving jurisdictional question for courts; (ii) seek preemptive declaratory or injunctive relief in court before arbitration commences; (iii) notify arbitrator of refusal to arbitrate, thereby forcing other party to file motion in court to compel arbitration; or (iv) timely file motion to vacate arbitrator’s award following arbitration); see also Shank/Balfour Beatty v. Int’l Bhd. of Elec. Workers Local 99, 497 F.3d 83, 90 n. 2 (1st Cir.2007) (determining that appellant “did not waive its right to challenge arbitrability by participating in the hearing on the merits after it raised the arbitrability issues before the arbitrator and the arbitrator ruled against [the appellant]”).

Because Mr. Grant challenged the arbi-trability of Ms. Rotolante’s claims at the outset of the arbitration proceedings, his motion to vacate was not subject to the three-month statute of limitations under 9 U.S.C. § 12. See Solvay Pharm., Inc. v. Duramed Pharm., Inc., 442 F.3d 471, 478 n. 6 (6th Cir.2006) (noting that challenge to arbitrability may manifest itself as attack on arbitration award under 9 U.S.C. § 10(a) or as motion resisting petition to compel arbitration under 9 U.S.C § 4 when challenge occurs after arbitration, but “[w]hen the challenge occurs prior to the arbitration, there is no question that the issue is one of arbitrability, for no award yet exists to be challenged”); see also Lucey v. FedEx Ground Package Sys., Inc., 305 Fed.Appx. 875 (3d Cir.2009) (holding that contractor’s failure to file motion to vacate arbitrator’s decision did not waive challenge to written arbitration clause as unconscionable where contractor raised objection to arbitration and validity of provision); Lukens Steel Co. v. United Steelworkers of Am. (AFL-CIO), 989 F.2d 668, 679 n. 11 (3rd Cir.1993) (“We note that to preserve an objection to arbitrability, a party need only state his or her objection on the record at the arbitration. The party may then proceed with the arbitration and raise the objection at a later date in an enforcement proceeding.”). We decline to mandate additional requirements to contest arbitrability in the court system.

2. FINRA Rule 12200

Since Mr. Grant did not waive arbitrability, we must next determine whether he was required to arbitrate Ms. Rotolante’s claims. “[Arbitration is a matter of contract,” Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 69, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010), and there is “a liberal federal policy favoring arbitration agreements,” Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). “In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, and enforce them according to their terms.” AT&T Mobility LLC v. Concepcion, — U.S. —, 131 S.Ct. 1740, 1745, 179 L.Ed.2d 742 (2011) (internal citations omitted). However, while arbitration is favored, “no party may be forced to submit a dispute to arbitration that the party did not intend and agree to arbitrate.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999); see Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Jr. Univ., 489 U.S. 468, 479, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989) (“Arbitration ... is a matter of consent, not coercion.”).

FINRA arbitrations are governed by the FINRA Code of Arbitration Procedure for Customer Disputes (“FINRA Customer Code”). FINRA Rule 12200 of the FINRA Customer Code constitutes an “agreement in writing” under the FAA, 9 U.S.C. § 2, and provides:

Parties must arbitrate a dispute under the Code if:
Arbitration under the Code is either:
(1) Required by a written agreement, or
(2) Requested by the customer
The dispute is between a customer and a member or associated person of a member; and
The dispute arises in connection with the business activities of the member or the associated person ....

Therefore, under the FINRA Customer Code, FINRA members, including Mr. Grant, must arbitrate disputes arising out of their business activities at the request of a “customer.” See, e.g., UBS Fin. Servs., Inc. v. Carilion Clinic, 706 F.3d 319, 325 (4th Cir.2013). Assuming Ms. Rotolante is a customer, she would be entitled to invoke FINRA Rule 12200 as an intended third-party beneficiary in her dispute with Mr. Grant. See, e.g., Goldman, Sachs & Co., 747 F.3d at 739 n. 1; Kidder, Peabody & Co. v. Zinsmeyer Trusts P’ship, 41 F.3d 861, 863-64 (2d Cir.1994); see also Waterford Inv. Servs., Inc. v. Bosco, 682 F.3d 348, 353 (4th Cir.2012); MONY Sec. Corp. v. Bornstein, 390 F.3d 1340, 1342 (11th Cir.2004). We review this question de novo. E.g., Morgan Keegan & Co. v. Silverman, 706 F.3d 562, 565 (4th Cir.2013) (indicating court reviews de novo question of whether investors were customers of distributor-underwriter engaged in dispute arising from distributor-underwriter’s conduct of its business activities, such that investors could invoke mandatory arbitration under FINRA rule).

Mr. Grant denies any obligation to arbitrate under FINRA Rule 12200, arguing that Ms. Rotolante was not a “customer” within the meaning of the FINRA Customer Code. The question of whether Ms. Rotolante was a “customer” is a question of Florida contract law and federal arbitrability law, without the presumption in favor of arbitration. See Concepcion, 131 S.Ct. at 1745 (noting that FAA reflects “fundamental principle that arbitration is a matter of contract” (quoting Jackson, 561 U.S. at 67, 130 S.Ct. 2772)); Goldman, Sachs & Co., 747 F.3d at 742 (“If the parties contest the existence of an arbitration agreement, the presumption in favor of arbitrability does not apply.... The presumption in favor of arbitrability applies only where the scope of the agreement is ambiguous as to the dispute at hand_”). As there is no written agreement between Mr. Grant and Ms. Roto-lante, this question must be resolved to determine the existence of a contract to arbitrate, not the scope of an arbitration agreement. Carilion Clinic, 706 F.3d at 324 n. 2.

The FINRA Customer Code does not provide a comprehensive definition of the term “customer,” stating only that “ ‘[a] customer shall not include a broker or dealer.’” FINRA Rule 12100(i). But as to non-brokers and non-dealers, like Ms. Rotolante, the FINRA Rules do not define the term, leading to varying interpretations. The Fourth Circuit has defined “customer” for purposes of FINRA Rule 12200 as “one, not a broker or a dealer, who purchases commodities or services from a FINRA member in the course of the member’s business activities insofar as those activities are regulated by FINRA— namely investment banking and securities business activities.” Carilion Clinic, 706 F.3d at 325; see Goldman, Sachs & Co., 747 F.3d at 738-39 (adopting Carilion Clinic definition of “customer”). This definition comports with other courts’ decisions addressing the meaning of the term “customer” under FINRA Rule 12200. See, e.g., Citigroup Global Markets, Inc. v. Abbar, No. 13-2172, 2014 WL 3765867, at *6 (2d Cir. Aug. 1, 2014) (holding that FINRA “customer” is one who, while not broker or dealer, either purchases good or service from FINRA member, or has account with FINRA member). The Eighth Circuit construed “customer” to refer to one involved in a business relationship with a FINRA member that is related directly to investment or brokerage services. Berthel Fisher & Co. Fin. Servs., Inc. v. Larmon, 695 F.3d 749, 752 (8th Cir.2012) (citing Fleet Boston Robertson Stephens, Inc. v. Innovex, Inc., 264 F.3d 770, 772 (8th Cir.2001)). The Eighth Circuit also noted that the term “customer” requires that the FINRA member provide investment or brokerage services “to the customer either directly or through its associated persons.” Id. at 753.

Here, Mr. Grant clearly advised Ms. Ro-tolante about her investments, referred her to the bank to obtain the home mortgage in order to invest in securities, and continued to advise her after she opened an investment account with the bank’s investment subsidiary. However, it is equally clear that Ms. Rotolante did not open any account with Mr. Grant, deposit any money or securities with him, purchase or sell any securities from or through him, and never paid Mr. Grant any compensation. Further, Mr. Grant did not receive any financial benefit from the bank or any other source. Therefore, Ms. Rotolante was not Mr. Grant’s customer under FIN-RA Rule 12200. See Wachovia Bank, Nat’l Ass’n v. VCG Special Opportunities Master Fund, Ltd., 661 F.3d 164, 173-74 (2d Cir.2011) (indicating that when it is clear that no goods or services were provided by FINRA member, “there is no need to grapple with the precise boundaries of the FINRA meaning of ‘customer’ ” because “no rational factfinder could infer” customer relationship under such facts); UBS Fin. Servs., Inc. v. W. Va. Univ. Hosps., Inc., 660 F.3d 643, 650 (2d Cir.2011) (indicating that purchase of good or service from FINRA member creates customer relationship); see also Silverman, 706 F.3d at 567-68 (holding that defendants were not “customers” of distributor-underwriter because they did not purchase commodities or services from distributor-underwriter in course of business activities regulated by FINRA); Cf. First Montauk Sec. Corp. v. Four Mile Ranch Dev. Co., 65 F.Supp.2d 1371,1381 (S.D.Fla. 1999) (finding investor was customer of member firm, although account was maintained at different brokerage firm, but representative of member firm managed investor’s account, realizing profits from some trades). Expanding the definition to include Ms. Rotolante under the facts of this ease would upset the reasonable expectations of FINRA members. Herbert J. Sims & Co. v. Roven, 548 F.Supp.2d 759, 764 (N.D.Cal.2008); see Wachovia, 661 F.3d at 171 (stating that word “customer” must “be construed in a manner consistent with the ‘reasonable expectations’ of FINRA members”).

Even if Ms. Rotolante was a customer, her claim would still not be arbitrable because the dispute did not arise out of Mr. Grant’s business activities. While Mr. Grant certainly acted in some capacity as Ms. Rotolante’s financial advisor, it was not in the course of his business activities regulated by FINRA. See, e.g., Eppinger v. Sealy, 25 So.3d 69 (Fla. 5th DCA 2009) (holding that employee’s claims against firm were not subject to mandatory arbitration because they did not arise out of business activities of either employee or firm, but instead, arose out of divorce agreement). The connection between Ms. Rotolante and Mr. Grant is too attenuated to make her a customer of Mr. Grant within the meaning of FINRA Rule 12200. To interpret “customer” so broadly as to include the friendship, as opposed to a non-existent business relationship, between Mr. Grant and Ms. Rotolante disregards the actual relationship between a claimant and a FINRA member and could lead to scenarios where a FINRA member’s membership alone would require arbitration. This would frustrate and do significant injustice to the reasonable expectations of FINRA members. Morgan Keegan & Co. v. Shadburn, 829 F.Supp.2d 1141, 1149-50 (M.D.Ala.2011). Simply, there must be a business connection directly related to the investment- or brokerage-related services provided to a customer.

By agreeing to FINRA Rule 12200, Mr. Grant consented to arbitration with his customers, not with non-customers such as Ms. Rotolante. To compel arbitration when parties have not agreed to do so would discourage entities from agreeing to arbitrate at all out of fear that such agreements would be stretched too far in the course of judicial construction. This, in itself, would undermine the federal policy favoring arbitration. See Raymond James Fin. Servs., Inc. v. Cary, 709 F.3d 382, 388 (4th Cir.2013). In determining that Ms. Rotolante is not a customer of Mr. Grant within the meaning of FINRA Rule 12200, we express no view on the merits of the allegations that Ms. Rotolante details in her amended FINRA Statement of Claim. We hold only that Mr. Grant never agreed or consented to arbitrate disputes with Ms. Rotolante in this case. Therefore, we reverse the final judgment confirming the arbitration award.

REVERSED AND REMANDED for proceedings not inconsistent with this opinion.

SAWAYA and COHEN, JJ., concur.

      . The facts set out in this opinion are taken from a partial transcript of the FINRA proceedings. Ms. Rotolante asserts that this Court should not consider the partial transcript because it is not a complete transcript of the four-day arbitration proceeding and was not certified by a court reporter. However, the appellate rules do not require the filing of the entire transcript; rather, the appellant need only file portions of the transcript "deemed necessary.” Fla. R. App. P. 9.200(b)(1). Further, the last page of each volume contains the transcriber's certification. Moreover, Ms. Rotolante has not cited any evidence that the transcript excerpts are not a reliable and accurate transcription of the digitally recorded FINRA proceedings.

      . FINRA is a private self-regulatory organization registered under the Securities Exchange Act of 1934. See 15 U.S.C. § 78 o-3. It is authorized to exercise comprehensive oversight over "all securities firms that do business with the public.” Sec. & Exch. Comm'n Release No. 34-56145, 72 Fed. Reg. 42169, 42170 (Aug. 1, 2007). Upon joining FINRA, a member agrees to comply with FINRA’s rules. See FINRA Bylaws of the Corporation art. IV § 1(a), available at http: //finra.com-plinet.com/en/display/display-main.html?rbid=2403& element_id=4609 (last visited Aug. 5, 2014).

      . The FINRA Rules include distinct subparts: the "Industry Code,” governing "arbitrations between or among industry parties only,” and the "Customer Code,” applicable in this case, governing arbitrations between "investors and brokers and/or brokerage firms.” See FINRA, Arbitration & Mediation, Code of Arbitration Procedure, available at http://www. finra.org/arbitrationandmediation/arbitration/ rules/codeofarbitrati onprocedure/ (last visited Aug. 5, 2014).

      . Prior to 2007, FINRA was known by its prior name, the National Association of Securities Dealers, Inc. ("NASD”). Notably, the Approval Order for the amendments made to the FINRA rules, effective after April 16, 2007, notes that "commenters suggested defining the term 'customer' to help clarify jurisdictional and standing issues related to arbitration.” Order Approving Proposed Rule Change & Amendments to NASD Arbitration Rules for Customer Disputes, 72 Fed. Reg. 4574, 4577 (Jan. 31, 2007). However, NASD declined to follow such suggestions, and specifically noted that the FINRA Rules "would define a 'customer' as not including a broker or a dealer ... the same [definition] as that [previously] found in the general definitions for NASD rules.” Id. FINRA has adopted other rules that, while not contained in the FINRA Customer Code, provides a more specific definition of the term "customer,” e.g., FINRA Rules 2261(c), 4210(a)(3) and 4530, but these definitions are expressly limited in application to these particular FINRA Rules. See FINRA Manual: Rules 2261, 4210 & 4530, available at http://finra.compIinet.com (last visited Aug. 5, 2014); see also FINRA Regulatory Notice No. 12-55, at Q & A 6(a) (Dec. 2012) ("FINRA’s definition of a customer in FINRA Rule 0160 excludes a 'broker or dealer.’ In general, for purposes of the suitability rule, the term customer includes a person who is not a broker or dealer who opens a brokerage account at a broker-dealer or purchases a security for which the broker-dealer receives or will receive, directly or indirectly, compensation even though the security is held at an issuer, the issuer’s affiliate or a custodial agent (e.g., 'direct application’ business, 'investment program' securities, or private placements), or using another similar arrangement.” (internal footnotes omitted), available at http://finra.complinet.com (last visited Aug. 5, 2014)).

      . Most courts have held that the term "customer” must have a more limited meaning than simply "all entities other than brokers or dealers.” SunTrust Banks, Inc. v. Turnberry Capital Mgmt. LP, 945 F.Supp.2d 415, 421 (S.D.N.Y.2013); see UBS Sec. LLC v. Voegeli, 684 F.Supp.2d 351, 356 (S.D.N.Y.2010) ("Such an interpretation ... would be absurd.”), affirmed, 405 Fed.Appx. 550 (2d Cir. 2011); see, e.g., Berthel Fisher & Co. Fin. Servs., Inc. v. Larmon, 695 F.3d 749, 752 (8th Cir.2012) (rejecting argument that one may qualify as customer merely by being neither broker nor dealer); Silverman, 706 F.3d at 565-66 (declining to adopt broad scope of term "customer" as anyone not including broker or dealer). Instead, in keeping with sense that "customer” has a broad but not unconstrained sweep, it is frequently defined in a manner that does not upset the reasonable expectations of FINRA members. See, e.g., Wheat, First Sec., Inc. v. Green, 993 F.2d 814, 820 (11th Cir.1993) (rejecting rule regarding customer status that "would do significant injustice to the reasonable expectations” of FINRA members). We reject as overly broad the Eleventh Circuit's holding in Multi-Financial Securities Corp. v. King, 386 F.3d 1364 (11th Cir.2004), which interpreted this definition to broadly include "anyone who is not a broker or a dealer.” See also Cal. Fina Grp., Inc. v. Herrin, 379 F.3d 311, 317 (5th Cir.2004) (noting that "[FINRA Customer] Code defines ‘customer’ broadly, excluding only 'a broker or dealer’ ”); see generally Doe v. Pryor, 344 F.3d 1282, 1286 (11th Cir.2003) ("The only federal court whose decisions bind state courts is the United States Supreme Court.”).