text:
    Lilia Mercedes JAMES, Appellant, v. Merdad HARIRI, et al., Appellees.
    No. 5D13-1788.
    District Court of Appeal of Florida, Fifth District.
    Dec. 20, 2013.
    Rehearing Denied Jan. 17, 2014.
    Lilia Mercedes James, Maitland, pro se.
    Wayne Tosko and Todd W. Gretton of Vasquez & Tosko, LLP, Orlando, for Ap-pellees.
   PER CURIAM.

Appellant, Lilia Mercedes James, appeals a final judgment entered in favor of Appellees, Merdad Hariri, Shereen Hariri, and C.L. Peng Construction Management, Inc., after a bench trial. James filed a complaint averring that C.L. Peng Construction Management, Inc., was employed by her neighbors, the Hariris, to construct a single family residence upon their property. The complaint alleged that the construction work proximately caused damage to James’s property. In its ruling, the trial court found that James did not meet her burden of establishing that the construction work was the cause of any damage to her property.

James has failed to provide a trial transcript as required by Florida Rule of Appellate Procedure 9.200, indicating that doing so is “cost prohibitive.” While we are sympathetic to the costs involved, the challenge to the lower court’s decision is factual in nature and cannot be determined without reviewing the trial transcript. Thus, because James did not provide this Court with a transcript from the trial proceedings, we must affirm. See Shuler v. Green Mountain Ventures, Inc., 791 So.2d 1213, 1216 (Fla. 5th DCA 2001).

AFFIRMED.

GRIFFIN, PALMER and COHEN, JJ., concur.

      . By order dated July 16, 2013, this Court made clear to James that she bears the burden of providing the transcript,


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Danny CONLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5496.
    District Court of Appeal of Florida, First District.
    Dec. 20, 2013.
    Rehearing Denied Jan. 23, 2014.
    Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this appeal from a final order of adjudication and commitment as a sexually violent predator under the Jimmy Ryce Act, appellant seeks reversal of the final order on several grounds. We agree the trial court erred in excluding evidence of a penile plethysmograph (PPG) test in disregard of the Third District Court of Appeal’s decision in State v. Fullwood, 22 So.3d 655 (Fla. 3d DCA 2009), which affirmed the admission of PPG evidence in a Jimmy Ryce Act proceeding after the trial court found PPG evidence was not new or novel evidence subject to analysis under Frye v. United States, 293 F. 1013 (D.C.Cir.1923). Fullwood was binding on the trial court in the absence of any contrary authority. See Pardo v. State, 596 So.2d 665, 666 (Fla.1992) (observing that “in the absence of interdistrict conflict, district court decisions bind all Florida trial courts”).

However, while this appeal was pending, Florida adopted the federal standard governing the admissibility of scientific evidence first announced by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), which replaced the Frye standard. Ch. 2013-107, at 1461-63, Laws of Fla. Specifically, consistent with Daubert, section 90.702, Florida Statutes (2013), was amended to provide:

If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case.

Accordingly, we reverse and remand for a new trial after the trial court has determined the admissibility of the PPG evidence under the Daubert standard codified by section 90.702. In light of this disposition, we do not reach appellant’s remaining claims on appeal.

REVERSED and REMANDED for new trial.

LEWIS, C.J., BENTON and SWANSON, JJ„ concur.


author: LOGUE, J. WELLS, Judge,

text:
    K.P., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1925.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2013.

      Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and WELLS and LOGUE, JJ.
   LOGUE, J.

Based upon an anonymous tip to a gun bounty program that K.P. was carrying a firearm, the assistant principal of his high school took possession of his book bag, removed him from a classroom full of students, and escorted him to the principal’s conference room. A search of the book bag revealed a loaded, semi-automatic handgun. K.P. appeals the denial of his motion to suppress the evidence of the firearm, arguing that the search of his book bag violated his Fourth Amendment right to be free from unreasonable searches.

Admittedly, an anonymous tip like the one at issue may not constitute a sufficiently reliable indicator that a crime was occurring to justify a search of K.P. by police officers on a public street. However, the level of reliability required to justify a search is lower when the tip concerns possession by a student of a firearm in a public school classroom. The Fourth and Fourteenth Amendments require that searches be reasonable in light of all the circumstances. Here, the lower level of reliability reflected in such an anonymous tip is more than offset because (1) a student’s expectation of privacy in the school setting is reduced, and (2) the government’s interest (protecting the vulnerable population of children assembled within the confines of the school from a firearm) is heightened. We therefore reject K.P.’s arguments and uphold the decision of the court below.

FACTS AND PROCEDURAL BACKGROUND

On October 12, 2011, the Miami-Dade County Police Department Gun Bounty Program received an anonymous tip that K.P., a student at Miami Northwestern Senior High School, was possibly in possession of a firearm. After being informed of this tip, a school resource officer, employed by the Miami-Dade County Schools Police Department and assigned to the high school, confirmed that K.P. attended the school after searching for his name in an electronic public school database system. The officer then notified the assistant principal and school security guards of the tip.

The assistant principal and two school security guards went to KP.’s classroom, took possession of KP.’s book bag, and escorted K.P. to the principal’s conference room. Upon entering the room, the assistant principal handed over the book bag to the school resource officer. The officer opened the book bag and discovered a loaded, semi-automatic handgun.

K.P. was subsequently charged as a juvenile with carrying a concealed weapon, possession of a firearm on school grounds, and possession of a firearm by a minor. He moved to exclude the handgun from evidence, arguing that the search of his book bag violated his Fourth Amendment right to be free from unreasonable searches and seizures. The trial court denied the motion. Following a bench trial, the trial court withheld adjudication and imposed fifteen days in secure detention and one year of probation. This appeal followed.

ANALYSIS

A. The Fourth Amendment and Anonymous Tips.

The Fourth Amendment to the United States Constitution states, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Because the “central inquiry under the Fourth Amendment” is “reasonableness in all the circumstances,” Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), no single level of reliability applies in every situation. “Neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance.” Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). As discussed in this section, a substantial body of law addresses the level of reliability that an anonymous tip must demonstrate in order to justify a search under the Fourth Amendment. In this regard, the level of reliability that an anonymous tip must demonstrate in order to satisfy the Fourth Amendment is lower both when an extraordinary danger is threatened and where legitimate expectations of privacy are reduced.

Anonymous tips, which are more susceptible to abuse than a tip by a known informant, may be less reliable than other investigative leads. Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). The government’s interest in conducting a search based upon an anonymous tip, therefore, is usually measured by examining the tip’s “indicia of reliability.” Id. Generally, a search based upon an anonymous tip withstands scrutiny under the Fourth Amendment only if the tip contains sufficient details and information that can be independently corroborated by the police to establish a level of reliability regarding the information in the tip. Id. at 270-71, 120 S.Ct. 1375. In the words of a noted jurist and scholar in this area, the anonymous tip must show “that the tipster has some inside knowledge about the suspect, and that the tipster’s accusation of illegal activity is entitled to some credence.” Phillip A. Hubbart, Making Sense of Fourth Amendment Law: A Fourth Amendment Handbook 197 (2005).

In the case of Alabama v. White, 496 U.S. 325, 332, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990), for example, the Court held that an anonymous tip was sufficient to justify an investigative stop that led to a consensual search of a vehicle which uncovered marijuana. The Court focused on the extensive, predictive details regarding the suspect’s appearance, automobile, time of departure, and route included in the tip that allowed the police to test the informant’s knowledge and credibility. Id. at 331-32, 110 S.Ct. 2412. When the police were able to verify this information, the Court explained, they had “reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop.” Id. at 332, 110 S.Ct. 2412.

In contrast, the Court later held an anonymous tip did not provide sufficient corroborating detail to justify an investigative stop and frisk on a public street when the tip consisted entirely of a statement that an African-American youth standing at a certain bus stop wearing a plaid shirt was carrying a gun. J.L., 529 U.S. at 271-72, 120 S.Ct. 1375. The Court held that the tip must be reliable, not only to identify the suspect, but also to indicate the crime was being committed: “[t]he reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” Id. at 272, 120 S.Ct. 1375. A tip that does no more than accurately describe a suspect’s readily observable location and appearance on a public street is insufficient to pass Fourth Amendment muster because it fails to “show that the tipster has knowledge of concealed criminal activity.” Id.

When weighing the legitimacy of the government’s interest to conduct a search based upon the anonymous tip in J.L., the Court focused largely on the reliability of the information used by the officer to decide to initiate the stop and frisk. Id. at 271, 120 S.Ct. 1375. For this reason, the Court in J.L. expressly declined to make “an automatic firearm exception to our established reliability analysis,” whereby a stop and frisk would always be justified by any anonymous tip indicating a person was carrying a firearm. Id. at 272, 120 S.Ct. 1375. “Firearms are dangerous ... [but] the Fourth Amendment is not so easily satisfied.” Id. at 273, 120 S.Ct. 1375.

Nevertheless, it would be wrong to read J.L. as establishing an irreducible minimum of reliability that applies to all anonymous tips in all circumstances, and regardless of the extent of the threat that the tip revealed. Although the Court in J.L. set forth a required level of reliability needed for an anonymous tip to justify a stop and frisk' on a public street, the Court was careful to note the Fourth Amendment did not establish a minimum level of reliability required in all circumstances.

In fact, the Court expressly recognized that there may be circumstances justifying “protective searches on the basis of information insufficient to justify searches elsewhere.” Id. at 274, 120 S.Ct. 1375. For example, “extraordinary dangers sometimes justify unusual precautions.” Id. at 272, 120 S.Ct. 1375. In other words, the Court recognized that a search may be justified under the Fourth Amendment based upon an anonymous tip reflecting a lesser level of reliability than the tip in J.L. if the tip concerned a greater danger than possession of a firearm on a public street. The Court noted:

The facts of this case do not require us to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great as to justify a search even without a showing of reliability. We do not say, for example, that a report of a person carrying a bomb need bear the indicia of reliability we demand for a report of a person carrying a firearm before the police can constitutionally conduct a frisk.

Id. at 273-74, 120 S.Ct. 1375.

Under this line of authority, federal and state courts have routinely upheld searches targeting specific individuals based upon anonymous tips containing less indicia of reliability than that involved in J.L. when the government interest was more immediate, substantial, and grave than the interest involved in J.L. Indeed, where the danger is sufficiently substantial, and other factors are met, a search may satisfy the Fourth Amendment even when there is no individualized suspicion.

In addition, the Court in J.L. explained that the level of reliability that it established for the anonymous tip in J.L. was not necessarily intended to apply in schools:

Nor do we hold that public safety officials in quarters where the reasonable expectation of Fourth Amendment privacy is diminished, such as airports and schools, cannot conduct protective searches on the basis of information insufficient to justify searches elsewhere.

Id. at 274, 120 S.Ct. 1375 (internal citations omitted); see also J.L. v. State, 727 So.2d 204, 209 n. 5 (Fla.1998) (Harding, J., concurring), aff'd, 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (noting that the result of J.L. “might have been different had the frisk been conducted by a school official on school grounds”).

In recognizing that schools are one of the “quarters where the reasonable expectation of Fourth Amendment privacy is diminished” such that “public safety officials” may well “conduct protective searches on the basis of information insufficient to justify searches elsewhere,” the Court merely acknowledged well-established precedent, which we discuss in the next section.

B. The Fourth Amendment in Schools.

Any analysis of a search in a school must begin with the principle that the school setting “requires some modification of the level of suspicion of illicit activity needed to justify a search.” New Jersey v. T.L.O., 469 U.S. 325, 340, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). In the leading case of T.L.O., the United States Supreme Court held that searches by school officials in public schools “should depend simply on the reasonableness, under all of the circumstances, of the search.” Id. at 341, 105 S.Ct. 733. Thus, the search of a student on school grounds is not governed by probable cause, but is instead governed by the less demanding standard of reasonable suspicion. Id.; State v. D.S., 685 So.2d 41, 43 (Fla. 3d DCA 1996). This is also the standard that applies to a stop and frisk on a street. Terry, 392 U.S. at 30, 88 S.Ct. 1868.

In T.L.O., an assistant principal of a high school searched a student’s purse for cigarettes (which were forbidden on school grounds) based upon a teacher’s observation that the student was smoking in a lavatory. 469 U.S. at 328, 105 S.Ct. 733. The assistant principal found marijuana, and the student ultimately confessed to selling the drug at school. Id. at 328-29, 105 S.Ct. 733. The student subsequently moved to suppress the contraband and confession. Id. at 329, 105 S.Ct. 733.

The Court concluded that the search of the student’s purse “was in no sense unreasonable for Fourth Amendment purposes.” Id. at 343, 105 S.Ct. 733. In doing so, the Court held that a child did not waive his or her “rights to privacy in such items merely by bringing them onto school grounds.” Id. at 339, 105 S.Ct. 733. An invasion of privacy results from a “search of a child’s person or of a closed purse or other bag carried on her person, no less than a similar search carried out on an adult.” Id. at 337-38, 105 S.Ct. 733.

The Court, however, also held that the-child’s legitimate expectation of privacy must be weighed against the interest of the school to maintain order and, pertinent to the instant case, to protect children from violence in schools:

Against the child’s interest in privacy must be set the substantial interest of teachers and administrators in maintaining discipline in the classroom and on school grounds. Maintaining order in the classroom has never been easy, but in recent years, school disorder has often taken particularly ugly forms: drug use and violent crime in the schools have become major social problems.

Id. at 339, 105 S.Ct. 733 (emphasis added).

In Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 664-65, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995), the Court returned to application of the Fourth Amendment to searches in schools when it held that a public school could require students playing interscholastic sports to undergo random drug tests without any individualized suspicion of wrongdoing. “As the text of the Fourth Amendment indicates,” the Court reasoned, “the ultimate measure of the constitutionality of a governmental search is ‘reasonableness.’ ” Id. at 652, 115 S.Ct. 2386. And “whether a particular search meets the reasonableness standard is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” Id. at 652-53, 115 S.Ct. 2386 (internal quotation omitted).

When balancing these considerations, the Court emphasized that students in school generally have a “decreased expectation of privacy.” Id. at 664, 115 S.Ct. 2386. “Fourth Amendment rights, no less than First and Fourteenth Amendment rights, are different in public schools than elsewhere.” Id. at 656, 115 S.Ct. 2386. The relationship of the school to the student is “custodial and tutelary, permitting a degree of supervision and control that could not be exercised over free adults.” Id. at 655, 115 S.Ct. 2386. Therefore, “while children assuredly do not shed their constitutional rights ... at the schoolhouse gate, the nature of those rights is what is appropriate for children at school.” Id. at 655-56, 115 S.Ct. 2386 (internal citation and quotation omitted).

In weighing the “severity of the need” for a search, moreover, the Court also made clear that the nature of the government interest is not “a fixed, minimum quantum of governmental concern, so that one can dispose of a case by answering the question in isolation: is there a compelling state interest?” Id. at 661, 115 S.Ct. 2386. Instead, the Court held, “the phrase describes an interest that appears important enough to justify the particular search at hand.” Id. Nor was the government’s legitimate interest contingent upon a predetermined, minimum level of suspicion: “[t]he school search we approved in T.L.O., while not based on probable cause, was based on individualized suspicion of wrongdoing. As we explicitly acknowledged, however, the Fourth Amendment imposes no irreducible requirement of such suspicion.” Id. at 653, 115 S.Ct. 2386 (internal quotation omitted).

Balancing “the decreased expectation of privacy, the relative unobtrusiveness of the search, and the severity of the need,” the Court concluded that requiring students playing interscholastic sports to undergo random drug tests was reasonable even without individualized suspicion of wrongdoing. Id. at 664-65, 115 S.Ct. 2386. “[Wjhen the government acts as guardian and tutor the relevant question is whether the search is one that a reasonable guardian and tutor might undertake. Given the findings of need made by the District Court, we conclude that in the present case it is.” Id. at 665, 115 S.Ct. 2386.

The dangers involved in T.L.O. and Acton were cigarette or drug use. The threat of a student carrying a firearm on school grounds obviously presents a more immediate and grave threat to the lives of students.

C. The Threat of Gun Violence in Schools.

The need to protect children in schools from violence rests not only on common sense — on “what every parent knows”— but has been expressly recognized by the highest court in the land.

As noted above, the majority opinion in T.L.O. is based upon the recognition of the need for school officials to address “violence in the schools.” In concurring, Justice Powell, joined by Justice O’Connor, placed even greater reliance than the majority on the importance of protecting teachers and students from the rising levels of crime in schools:

[Ajpart from education, the school has the obligation to protect pupils from mistreatment by other children, and also to protect teachers themselves from violence by the few students whose conduct in recent years has prompted national concern.

T.L.O., 469 U.S. at 350, 105 S.Ct. 733 (Powell, J., concurring).

Justice Blackmun’s concurrence in T.L.O. also emphasized the need for a lower Fourth Amendment standard in schools to protect students and teachers from violence:

[Government has a heightened obligation to safeguard students whom it compels to attend school. The special need for an immediate response to behavior that threatens either the safety of school children and teachers or the educational process itself justifies the Court in excepting school searches from the warrant and probable-cause requirement, and in applying a standard determined by balancing the relevant interests.

Id. at 353, 105 S.Ct. 733 (Blackmun, J., concurring).

Justice Stevens dissented in T.L.O., in part because the decision authorized a search of a purse for cigarettes, and therefore reduced Fourth Amendment protections for “even the most trivial school regulation or precatory guideline for student behavior.” Id. at 377, 105 S.Ct. 733 (Stevens, J., dissenting). Justice Stevens contrasted such “trivial” problems, which he believed did not justify a lower Fourth Amendment standard, with violence in the schools, which he believed would:

Violent, unlawful, or seriously disruptive conduct is fundamentally inconsistent with the principal function of teaching institutions which is to educate young people and prepare them for citizenship. When such conduct occurs amidst a sizable group of impressionable young people, it creates an explosive atmosphere that requires a prompt and effective response.

Id. at 376, 105 S.Ct. 733.

The Supreme Court’s recognition in T.L.O. of the government’s interest in addressing “violent crime in the schools” may appear almost prescient. “Judges cannot ignore what everybody else knows: violence and the threat of violence are present in the public schools_ The incidences of violence in our schools have reached alarming proportions.” State v. J.A., 679 So.2d 316, 320 (Fla. 3d DCA 1996) (internal citation and quotation omitted) (approving random classroom searches of high school students with hand-held metal detector wands). Since T.L.O. was written, our Country has experienced an outbreak of catastrophic mass shootings of children in schools. In light of this grim development, no reasonable person would contest that the government’s interest in protecting students from gun violence is entitled to substantial weight when deciding whether a particular search at a school is reasonable under all of the circumstances.

D. The Search of K.P.’s Book Bag Was Reasonable.

Was the anonymous tip that a named student in a certain school possibly possessed a gun enough to justify the search of KP.’s book bag? Applying the law discussed above, we hold that it was.

1. Expectation of Privacy.

First, while K.P. had a reasonable expectation of privacy in the contents of his book bag on school property, T.L.O., 469 U.S. at 339, 105 S.Ct. 733, KP.’s expectation of privacy was tempered by the special characteristics of the school setting. Schools are one of the “quarters where the reasonable expectation of Fourth Amendment privacy is diminished” such that “public safety officials” may well “conduct protective searches on the basis of information insufficient to justify searches elsewhere.” J.L., 529 U.S. at 274, 120 S.Ct. 1375; see also Bd. of Educ. v. Earls, 536 U.S. 822, 830, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002) (“A student’s privacy interest is limited in a public school environment where the State is responsible for maintaining discipline, health and safety.”); T.L.O. 469 U.S. at 348, 105 S.Ct. 733 (Powell, J., concurring) (noting “the special characteristics of elementary and secondary schools that make it unnecessary to afford students the same constitutional protections granted adults and juveniles in a non-school setting”).

2. Intrusiveness of Search.

Second, the search was only moderately intrusive. The search of a book bag carried onto school grounds is certainly invasive. Some book bags will contain children’s personal diaries, letters, photographs, items of personal hygiene, or other effects of a private nature whose public disclosure could offend a student’s reasonable expectations of privacy. Here, however, the search of KP.’s bag was conducted in the privacy of the principal’s conference room. Only school officials, no students, were present.

More importantly, the search was presumably limited in good faith to actions necessary to uncover a metal object like a pistol. Such a search would not include an intentional hunt for other contraband, although if discovered, such items need not be ignored. For example, such a search would not entail reading written materials, scrutinizing photographs, activating cellphones, or inspecting small pockets, crevices, wallets, containers, or purses too small to harbor a gun. Understood in this manner, the search of K.P.’s book bag appears no more intrusive than the search that occurs when a traveler brings a suit-ease into the passenger compartment of an airliner, an attorney carries her brief case into a courtroom, a commuter totes a shopping bag on the New York City subway, or a citizen carts a box of petitions to his Senator at the State Capital.

In the Fourth Amendment context of special needs searches, examination of personal effects similar to the search of KP.’s book bag have passed constitutional muster for airports, courthouses, government buildings, and public transportation, with some of the highest courts in the land characterizing such searches as “minimally intrusive.” See, e.g., United States v. Aukai, 497 F.3d 955, 962 (9th Cir.2007) (en banc) (holding the escalating intrusiveness of airport screen search from metal detector, to pat down, to emptying and searching pockets was “minimally intrusive”); MacWade v. Kelly, 460 F.3d 260, 273 (2d Cir.2006) (holding that a random visual and manual search of bags and packages carried onto the New York City subway was “minimally intrusive.”); United States v. Hartwell, 436 F.3d 174, 180 (3d Cir.2006) (holding that a search of bags carried onto an airplane was “minimally intrusive”). Although the searches in these cases were not based on individual suspicion, the holdings shed light on the issue of the intrusiveness of the search here. And, while we may not agree that the intrusiveness of such searches qualifies as minimal, we do find that the search of K.P.’s book bag could be proportionate to the legitimate purpose of detecting a firearm.

In this regard, we note that alternative searches would not be as accurate or safe. Not every school has the budget to buy metal detectors; and detectors can be set off by many innocent metal objects often contained in a book bag like keys, cellphones, pens, coins, and pencil boxes. Frisking the outside of the bag to feel for a firearm would not discover a pistol located between bulky textbooks. Groping the bag could trigger an accidental discharge. Interrogating the suspected student to seek further information solely to justify the search may go nowhere if the child remains resistant and impassive. Summoning parents may prove useless if the parents are unavailable or uncooperative.

On balance, therefore, the intrusiveness of the search at issue was not disproportionate. This analysis is not altered because the search was conducted by a school resource officer assigned full time to work at the school because such an officer is more akin to a school official than an officer on the street and the purpose of the search was to protect students, not to establish guilt. M.D. v. State, 65 So.3d 563, 566-67 (Fla. 1st DCA 2011).

3. Government’s Interest in Conducting the Search.

Finally, when judging the reasonableness of the search, courts must consider “the severity of the need” and determine whether the government’s legitimate interest “appears important enough to justify the particular search at hand.” Acton, 515 U.S. at 661, 115 S.Ct. 2386. As the Supreme Court has recognized time and again, the government’s interest in protecting juveniles assembled in the classroom under the aegis of governmental authority is “substantial.” T.L.O. 469 U.S. at 339, 105 S.Ct. 733. The danger of a juvenile with a gun in a classroom is different in degree and kind even from the danger of a juvenile with a gun on a street. We have little difficulty holding that firearms at schools represent a heightened danger.

Of course, the vice-principal who supervised the search of K.P.’s book bag did not know for certain at the outset that it contained a gun. The only information he had was the anonymous tip. Here is the nub of the Fourth Amendment problem. Fourth Amendment jurisprudence teaches us to take an objective look at the information used by the government official to initiate a search: the decision to conduct the search must be “justified at its inception.” Terry, 392 U.S. at 20, 88 S.Ct. 1868. In making this determination, however, we must be mindful that the level of reliability required to justify a search is less where the danger is sufficiently heightened and the expectation of privacy is reduced. Both factors occurred here. Thus, a tip in these circumstances — a gun in a classroom — justifies “searches on the basis of information insufficient to justify searches elsewhere.” J.L., 529 U.S. at 274, 120 S.Ct. 1375.

In this regard, while the school official did not know for certain that the book bag contained a gun, he was not operating on a mere “hunch.” The anonymous tip at issue contained indicia of reliability. It accurately identified a student by name, K.P., and the specific school he attended. This aspect of the tip limited the discretion of school officials concerning who could be searched.

This aspect of the tip also demonstrated that the caller knew K.P., and was possibly a student attending the same high school, thereby “narrowing the likely class of informants” and suggesting that the caller had inside knowledge of KP.’s activities. See id. at 275, 120 S.Ct. 1375 (Kennedy, J., concurring) (“It seems appropriate to observe that a tip might be anonymous in some sense yet have certain other features, either supporting reliability or narrowing the likely class of informants, so that the tip does provide the lawful basis for some police action”) (emphasis added). Next, school officials acted on the tip before it could become stale. Finally, the fact that the tipster contacted a gun bounty program, which offered monetary rewards to members of the community who report the whereabouts of illegal firearms, suggests that the caller had an incentive to offer an accurate report.

Given the reduced expectation of privacy, the relatively-moderate intrusiveness of search, the gravity of the threat, and the consequent reduced level of reliability necessary to justify a protective search, the decision to search KP.’s book bag was reasonable. Admittedly, the tip at issue in this case may not be sufficient to have justified a stop and frisk of K.P. for weapons on a public street (much less an outright search of his book bag) because it may not contain sufficient indicia of reliability reflecting that K.P. was actually carrying a firearm. But the circumstances supported reasonable suspicion of wrongdoing in the context of preventing the threat of gun violence in a classroom.

CONCLUSION

“[W]hen the government acts as guardian and tutor [of students in school] the relevant question is whether the search is one that a reasonable guardian and tutor might undertake.” Acton, 515 U.S. at 666, 115 S.Ct. 2386. An anonymous tip that a named student has a gun in school is not something that school administrators may lightly ignore. It is not a matter that warrants no response. Nor is it a matter that must await further developments before school officials address the threat. Considering the totality of the circumstances, the conclusion appears inescapable that a reasonable guardian and tutor of a group of school children might well conduct a search of the student’s book bag to address such a substantial threat to the children assembled at school.

Affirmed.

SHEPHERD, C.J., concurs.

WELLS, Judge,

(dissenting).

I respectfully dissent. Because I find that the search lacked requisite reasonableness, I would reverse the order on appeal for the following reasons.

On October 12, 2011, Gregory Williams, an officer with the Miami-Dade County Schools Police Department then working at Miami Northwestern Senior High School, received a telephone call from the Miami-Dade County Police Department Gun Bounty Program. During that call, Williams was advised that the Program had received information that a student at Miami Northwestern Senior High School, identified as K.P., “was possibly in possession of a firearm.” Based on this information, Officer Williams checked a public schools database and confirmed that K.P., then fifteen years old, was a student at Northwestern. After printing a copy of KP.’s class schedule, Officer Williams notified assistant principal Jorge Bulnes and school security monitors of the information he had received. Because of the upcoming class change and lunch break, they decided that it would be best not to approach K.P. until after his lunch break was over and he was in his next classroom.

After K.P. was in his next class, Bulnes and two security officers went to K.P.’s classroom, took possession of KP.’s backpack, and escorted K.P1, without discussion, to the principal’s conference room. Upon entering the conference room, the backpack was handed to Officer Williams who immediately opened it and found a loaded .380 caliber Lorcin semi-automatic handgun.

K.P. subsequently was charged with carrying a concealed weapon, possession of a firearm on school grounds, and possession of a firearm by a minor. K.P. moved to suppress the handgun claiming it to be the fruit of an unlawful, warrantless search in violation of his Fourth and Fourteenth Amendment rights. Following an eviden-tiary hearing, the motion was denied.

As this court stated in D.G. v. State, 961 So.2d 1063, 1064 (Fla. 3d DCA 2007), “there is no question of the assistant principal’s plenary authority, with or without justification, to summon a student to [his] office.” See also J.D. v. State, 920 So.2d 117, 122 (Fla. 4th DCA 2006) (confirming that “[w]hen school authorities receive information, whether verified or not, involving illegal activities occurring on their campus, calling the suspect student out of class to investigate the report is a reasonable and minimal step in that investigation.”). Nor is there any question that the “standards of reasonable or founded suspicion [enunciated in Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ], rather than the ordinary requirement of probable cause to justify a war-rantless search apply in the supervisor-student-school setting.” D.G., 961 So.2d at 1064 (citing New Jersey v. T.L.O., 469 U.S. 325, 333, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985)) (citation omitted); see also State v. D.S., 685 So.2d 41, 43 (Fla. 3d DCA 1996) (applying T.L.O. to a student search conducted by a police officer employed by the school district, finding that “a search conducted by a school police officer only requires reasonable suspicion in order to legally support the search”).

In this case, no reasonable suspicion existed to support the warrantless search of KP.’s backpack. Standing alone, the uncorroborated, unenhanced anonymous tip received by the school in this case was legally insufficient to satisfy that standard. See Baptiste v. State, 995 So.2d 285, 292 (Fla.2008) (confirming that an anonymous tip unsupported by independent observation or other enhancement is insufficient to satisfy the Terry standard of reasonable suspicion); contra D.G., 961 So.2d at 1064 (finding that a tip given to an assistant principal by a known informant “as opposed to ... a simple anonymous tipster ... is widely regarded as itself providing the reasonable suspicion necessary to meet [the] constitutional test” under Terry and T.L.O.). However, in a school setting, the legality of a student search depends simply on “reasonableness” under all of the circumstances and will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school:

[T]he legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search.... Under ordinary circumstances, a search of a student by a teacher or school official will be “justified at its inception” when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.

T.L.O., 469 U.S. at 341-342, 105 S.Ct. 733 (quoting Terry, 392 U.S. at 20, 88 S.Ct. 1868) (footnotes omitted).

Thus, while the uncorroborated, unen-hanced tip at issue here was legally insufficient to constitute reasonable suspicion that would support a warrantless search of KP.’s backpack, it was sufficient to support removal of K.P. from class for questioning and further observation and for a close examination of the exterior of his backpack to determine whether K.P. had been or was violating either the law or school rules. Had such actions been taken and resulted in information or observations which would reasonably support a determination that K.P. either had been or was violating the law or school rules, then a search of KP.’s backpack would have been justified from its inception. Because none of this took place before KP.’s backpack was searched, the warrantless search of KP.’s backpack was not reasonable under the circumstances and KP.’s motion to suppress should have been granted. I would therefore reverse the order denying his motion to suppress.

      . See, e.g., United States v. Holloway, 290 F.3d 1331, 1339 (11th Cir.2002), cert. denied, 537 U.S. 1161, 123 S.Ct. 966, 154 L.Ed.2d 897 (2003) (upholding the fruits of an investigative detention and search of individuals on a front porch based upon anonymous tip that shots had been fired: "when an emergency is reported by an anonymous caller, the need for immediate action may outweigh the need to verify the reliability of the caller”); People v. Wells, 38 Cal.4th 1078, 45 Cal.Rptr.3d 8, 136 P.3d 810, 815 (2006), cert. denied, 550 U.S. 937, 127 S.Ct. 2246, 167 L.Ed.2d 1096 (2007) (holding that an uncorroborated, anonymous report of a possibly intoxicated driver "weaving all over the roadway” justified an investigatory detention).

      . Under the rubric of "special needs” searches, where the discretion of government officials is strictly circumscribed and the government's interest in the search is particularly heightened, a search may qualify as reasonable under the Fourth Amendment without any individualized suspicion. See, e.g., Cassidy v. Chertoff, 471 F.3d 67, 83 (2d Cir.2006) (upholding the search of vehicles and luggage on commuter ferries because of the high risk that they might be targets of terrorist attacks); U.S. v. Edwards, 498 F.2d 496, 500 (2d Cir.1974) (holding that the search of carry-on luggage at airports meets the test of reasonableness because of the "enormous dangers to life and property from terrorists, ordinary criminals, or the demented”).

      . In an important sense, the school searches at issue in T.L.O. and Acton are at almost opposite ends of the spectrum of permissible searches. Whereas the T.L.O. search was based on individualized suspicion, the Acton search involved no individualized suspicion. We do not mean to suggest any false equivalency between these searches. To the contrary, the searches are different in regards to their nature, potential for abuse, and safeguards required to pass Fourth Amendment muster. Consistent across both cases, however, is the Fourth Amendment analysis used by the Court which involved balancing the expectation of privacy at issue, the intrusiveness of the search, and the government's interest.

      . The worst such incident occurred at the Virginia Polytechnic Institute and State University at Blacksburg, Virginia, on April 16, 2007, when a student shot and killed thirty-two students and wounded seventeen others. But focusing only on middle and high schools, other incidents include, but are not limited to, the following:
      1) On October 21, 2013, at Sparks Middle School in Sparks, Nevada, a student at the school shot and wounded two twelve-year-old students, and then shot and killed a teacher and himself.
      2) On December 14, 2012, at Sandy Hook Elementary School in Newtown, Connecticut, an adult shooter invaded the campus and killed twenty children and six adult staff members.
      3) On February 27, 2012, at Chardon High School in Chardon, Ohio, a student opened fire, killing one student and wounding four others.
      4) On January 5, 2011, at Millard South High School in Omaha, Nebraska, a student shot and killed the vice-principal, wounded the principal, and killed himself.
      5) On February 5, 2010, at Discovery Middle School in Madison, Alabama, a student shot and killed another student in the hallway.
      6) On October 2, 2006, at the West Nickel Mines School in Nickel Mines, Pennsylvania, a shooter invaded a schoolhouse, released the male students, shot and killed five female students, and injured five others.
      7) On March 21, 2005, at Red Lake High School on the Red Lake Indian Reservation in Minnesota, a student fatally shot five students, a teacher, and a guard, and wounded seven others before committing suicide.
      8) On March 5, 2001, at Santana High school in Santee, California, a student shot and killed two fellow students and wounded thirteen others.
      9) On April 20, 1999, at Columbine High School in Columbine, Colorado; two students opened fire, killing twelve students, one teacher, and wounding twenty-four others.
      10) On March 24, 1998, at Westside Middle School in Jonesboro, Arkansas, two middle school students opened fire, killing four students, a teacher, and wounding ten others.
      11) On January 17, 1989 in Stockton, California, an ex-student attacked a crowded school playground, killing five children and wounding twenty-nine others.

        See Timeline: Deadliest U.S. Mass Shootings, Los Angeles Times (Jun. 7, 2013), http:// timelines.latimes.com/deadliest-shooting-rampages/.

      . The Gun Bounty Program run by the Miami-Dade County Police Department offers monetary incentives to members of the community who report the whereabouts of illegal firearms. See Miami-Dade County Police Department Gun Bounty Program (last edited September 9, 2013, 1:36 PM), http://www. miamidade.gov/police/involved-gun-bounty. asp (last visited December 18, 2013). Intentionally, no identifying information is taken from those contacting the program nor may any such information be retrieved by the program. Id.

      . Williams did not accompany Bulnes and the two security officers to K.P.’s classroom.


author: SALTER, J.

text:
    Miguel RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2097.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2013.

      Carlos J. Martinez, Public Defender, and Shannon Healy, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before SALTER, FERNANDEZ, and LOGUE, JJ.
   SALTER, J.

Miguel Rodriguez appeals the denial of his motion to suppress evidence obtained by law enforcement officers and introduced by the state to prove his involvement in a so-called “grow house” operation, underlying a charge of trafficking in cannabis. The issue for our consideration on the record before us is whether the “inevitable discovery” exception to the exclusionary rule requires that the police be in the actual process of seeking a warrant when a warrantless, non-consensual search occurs. We affirm the trial court’s conclusions that probable cause existed, and substantial investigative measures were already well underway, before the time of the search, such that the inevitable discovery doctrine was correctly applied and the motion to suppress was properly denied.

Facts

Several bail bondsmen were attempting to locate one of their clients. The client, who had been charged with marijuana cultivation in a different house, had listed the address of Mr. Rodriguez’s home on his application for the bond. When the bondsmen knocked on the front door of that home, Mr. Rodriguez answered. He told the bondsmen that he did not know their client and that he was alone in the home. The bondsmen requested permission to search the home to be certain their client was not hiding there, and Mr. Rodriguez consented. The bondsmen noticed a smell of marijuana in the home.

Encountering a locked bedroom door, the bondsmen asked Mr. Rodriguez to open it so they could confirm that their client was not hiding- there. Mr. Rodriguez unlocked the door and told the bondsmen that he was growing marijuana in the room. At that point, one of the bondsmen in the group moved outside and called the police to report what the bondsmen had observed.

About thirty minutes later, a uniformed officer arrived at the home. The officer testified that Mr. Rodriguez invited him to enter. The officer saw the grow room, called the narcotics squad, and placed Mr. Rodriguez in handcuffs in the back of the officer’s squad car while they waited for the narcotics detectives to arrive. The bondsmen remained at that location throughout, and spoke to the lead detective when the narcotics unit arrived.

The lead detective testified that Mr. Rodriguez signed a form consenting to a search of the home. Mr. Rodriguez testified that he only signed the consent forms because the narcotics detectives had guns and most were also wearing masks. After their search confirmed the presence of a “grow room” containing six-foot marijuana plants, lights, and 36 pounds of marijuana, the detectives arrested Mr. Rodriguez.

The defense filed a motion to suppress. At the hearing on that motion, the circuit court heard testimony from the lead bondsman, the police officer who first responded to the call from the bondsmen, the lead narcotics unit detective, and Mr. Rodriguez. The state did not establish that the police officer or any detective had made any efforts to obtain a search warrant before law enforcement entered the home or Mr. Rodriguez was arrested. The lead detective did, however, testify that he would have sought a warrant if Mr. Rodriguez had not consented to the search.

The court denied the motion to suppress, although the court found that Mr. Rodriguez’s consent to entry by the police and detectives, and his signature on the consent form, were coerced. The court concluded that the inevitable discovery doctrine applied because probable cause had been established before law enforcement requested consent, and:

Soon as the bail bondsman calls and says, Listen I’m looking at a hydroponics lab to me that’s a trigger. If they had not gotten consent they would have gone and gotten a warrant.

Following the denial of the motion to suppress, Mr. Rodriguez entered a guilty plea and reserved the right to appeal the suppression issue. He was adjudicated guilty and sentenced, and this appeal followed.

Analysis

Mr. Rodriguez relies on King v. State, 79 So.3d 236 (Fla. 1st DCA 2012), and McDonnell v. State, 981 So.2d 585 (Fla. 1st DCA 2008), for the proposition that the inevitable discovery doctrine applies to a warrantless search in this context only if probable cause has been established and officers are in the process of obtaining a warrant when the search occurs. The majority opinion in McDonnell surveyed a number of federal cases, including United States v. Virden, 488 F.3d 1317 (11th Cir.2007), and United States v. Reilly, 224 F.3d 986 (9th Cir.2000), before concluding:

Thus, federal law suggests that the inevitable discovery doctrine will not be applied in every case where the police had probable cause for a warrant, but failed to get one. The cases focus on whether the police made an effort to get a warrant prior to the illegal search and whether strong probable cause existed for the search warrant.

McDonnell, 981 So.2d at 593.

In McDonnell, the trial court specifically found that the police investigator was in the process of obtaining a warrant at the time of the search, and that a warrant would have been issued based on probable cause. Based on those findings, the district court found that the inevitable discovery doctrine was correctly applied. In King, however, the state presented no evidence that there had been any effort to get a warrant, and the district court found that the inevitable discovery doctrine was inapplicable.

Another district court has also cited Vir-den and McDonnell in reversing the denial of a suppression motion and declining to apply the inevitable discovery doctrine, where the record included “absolutely no showing that efforts to obtain a warrant were being actively pursued prior to the occurrence of the illegal conducts the war-rantless search of an apartment].” Rowell v. State, 83 So.3d 990, 996 (Fla. 4th DCA 2012).

It is far from settled, however, that the “in the process of obtaining a warrant,” requirement argued here is an indispensable element of the inevitable discovery doctrine in such cases. The United States Court of Appeals, Seventh Circuit, has expressly rejected Virden’s requirement that a warrant is being “actively pursued” before the inevitable discovery doctrine will be applied to a warrantless search. United States v. Are, 590 F.3d 499 (7th Cir.2009); United States v. Tejada, 524 F.3d 809 (7th Cir.2008). That Court approves the inevitable discovery doctrine in such cases upon a showing that “a warrant would certainly, and not merely probably, have been issued had it been applied for.” Tejada, 524 F.3d at 813.

Similarly, the United States Court of Appeals, Tenth Circuit, has determined that the doctrine should be applied when a court has “a high level of confidence that the warrant in fact would have been issued and that the specific evidence in question would have been obtained by lawful means.” United States v. Cunningham, 413 F.3d 1199, 1203 (10th Cir.2005) (quoting United States v. Souza, 223 F.3d 1197, 1205 (10th Cir.2000)). The United States Court of Appeals, Fourth Circuit, has also declined to require proof of active efforts to obtain a warrant before the illegal search, provided the police prove that independent evidence available at the time of the search would have been sufficient for the issuance of a warrant. United States v. Allen, 159 F.3d 832 (4th Cir.1998).

The Supreme Court of Florida has also provided guidance regarding the inevitable discovery exception to the exclusionary rule. Relying on the United States Supreme Court’s explanation of the exception in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), the Supreme Court of Florida has held that that the inevitable discovery doctrine will apply if the State demonstrates “that at the time of the constitutional violation an investigation was already underway.” Moody v. State, 842 So.2d 754, 759 (Fla.2003) (quoting Nix, 467 U.S. at 457, 104 S.Ct. 2501). “In other words, the case must be in such a posture that the facts already in the possession of the police would have led to this evidence notwithstanding the police conduct.” Fitzpatrick v. State, 900 So.2d 495, 515 (Fla.2005). The Supreme Court of Florida has not imposed a more specific requirement that law enforcement must also be in the process of applying for a warrant in such a case.

In the case at hand, Mr. Rodriguez has candidly and properly acknowledged that the independent evidence available from the bondsmen regarding the locked grow room, the lights, and actual marijuana plants, coupled with the pre-search smell of marijuana (from outside the front door) described by both a bondsman and the first officer to respond, established probable cause for the issuance of a search warrant before any law enforcement officer requested consent. Irrespective of the later judicial determination that Mr. Rodriguez’s alleged verbal consent to search and his signed consent form were non-consensual, it seems illogical for the police to have initiated the warrant process when Mr. Rodriguez had already allowed the bondsmen to enter and observe the illegal operation, and when he then signed the consent form. The independent facts provided by the bondsmen before Mr. Rodriguez was requested to consent to a search by law enforcement officers (a) triggered the investigation by the police and (b) assured that the police ultimately would have obtained the inculpatory marijuana, lights, and other grow room materials.

The trial court correctly evaluated these facts, applied the inevitable discovery doctrine as articulated in Nix, Moody, and Fitzpatrick, and denied the motion to suppress.

Affirmed.

      . Mr. Rodriguez testified that he had not given the bondsmen permission to enter his house, that they told him he would have a problem if he did not allow a search because their client was a fugitive, and that they went inside the house without Mr. Rodriguez’s permission.

      . Mr. Rodriguez testified that he opened the locked bedroom door because the bondsmen told him he "would have a problem" if their client was hiding in that room.


author: WELLS, Judge.

text:
    CHASE FINANCIAL SERVICES, LLC., Appellant, v. Joey S. EDELSBERG, Kristen J. Edelsberg, et al., Appellees.
    No. 3D13-1008.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2013.
    Stephen Sperling, Hollywood; Cristina. L. Reynolds; Arnaldo Velez, Coral Gables, for appellant.
    John L. Penson, Bay Harbor Islands, for appellees.
    Before SHEPHERD, C.J., and WELLS and ROTHENBERG, JJ.
   WELLS, Judge.

Chase Financial Services LLC, the purchaser of a home at a foreclosure sale appeals from an order setting aside the sale. We reverse.

On December 20, 2011, Country Club Estates at Aventura Maintenance Association, Inc., brought suit against Joey S. Edelsberg, and others, (herein, Edelsberg) to foreclose a lien for non-payment of Association fees. Following unsuccessful mediation, a consent final judgment of foreclosure was entered. That judgment accorded Edelsberg the right of redemption but expressly limited that right until the filing of a certificate of sale:

7. Right of Redemption. Upon filing of the Certificate of Sale, Defendant’s right of redemption as prescribed by Florida Statutes, Section 45.0315 shall be terminated.

The property thereafter was sold to Chase Financial Services, LLC at a public sale and on February 8, 2013, a certificate of sale was filed of record by the clerk.

Seven days later, on February 15, 2013, Edelsberg filed a pro se “Sworn Objection to February 5, 2013, Clerk’s Sale” in which he requested that the sale be set aside because he had tendered payment and had been assured that there would be no sale:

2. The Defendant tendered his payoff to the Association and was told not to worry [ ] and that the Sale would not go forward.
3. Relying on that promise, the Defendant did not go to the Clerk to pay off the amount of the Final Judgment.

Following an initial hearing on Edels-berg’s objection, the matter was set for an evidentiary hearing. At the subsequent evidentiary hearing, Edelsberg admitted that he was aware of the final judgment of foreclosure; that he was aware of the scheduled foreclosure sale; and that he had not tendered payment prior to the filing of the certificate of sale. In sum, his testimony was that while he had the ability to satisfy the Association’s lien, as of the date of the evidentiary hearing he had not tendered payment as he represented in his “sworn” objection and he had not done so purportedly because a neighbor, Paul Lazarus, had told him not to worry about it, that such sales never “go through.”

Despite the fact that this testimony was contradicted by the testimony of the Association’s property manager — who confirmed that no tender was ever made by Edelsberg and that the Association had made no representations to Edelsberg about the foreclosure sale — and by the testimony of the neighbor — who denied ever telling Edelsberg not to worry about a foreclosure sale — the court below, orally announced at the end of the evidentiary hearing (and without making any findings), that if Edelsberg paid whatever he owed to the Association by 4:30 that day, the court would vacate the sale:

THE COURT: ... If you can come up with $57,000 and whatever by 4:30 today, I will grant ... the opportunity to vacate the sale. If he does not, the sale goes through, I will issue the C.T. [certificate of title].”
... I will be available at 9:00 Monday morning to get an answer as to whether any of this has happened. [Edelsberg] tenders the money, I will vacate the[] sale, and if he does not, I will deny the motion and issue the C.T.

The following Monday, March 18, 2013, the court below asked, “[h]as anything transpired of interest?” Edelsberg’s counsel responded “[w]e tendered payment, Judge.” The court then concluded that:

Based on the testimony presented at the hearing, the Court finds Mr. Edels-berg’s testimony to be credible. The Court will accept his testimony as to the confusion in his mind that no Sale would ever have occurred, accepts the finding that he had the money sufficient to pay the tender and accordingly will vacate the Sale.

A written order vacating the sale was entered. Chase, the purchaser at the foreclosure sale appeals; we reverse.

Section 45.031 of the Florida Statutes authorizes objections to judicial foreclosure sales if timely made:

(4) CERTIFICATION OF SALE.— After a sale of the property the clerk shall promptly file a certificate of sale and serve a copy of it on each party....
(5) CERTIFICATE OF TITLE. — If no objections to the sale are filed within 10 days after the filing certificate of sale, the clerk shall file a certificate of title....

§§ 45.031(4), (5), Fla. Stat. (2013).

As explained in Arsali v. Chase Home Finance LLC, 121 So.3d 511, 517-18 (Fla.2013), case law has consistently required “that litigants allege one or more adequate equitable factors and make a proper showing to the trial court that they exist in order to successfully obtain an order that sets aside a judicial foreclosure sale”:

Our decisions show that we have consistently held that the mere allegation of any single factor or specific combination of factors is insufficient for litigants to prevail in an action seeking a set aside of a judicial foreclosure sale. Instead our previous decisions have consistently required that litigants allege one or more adequate equitable factors and make a proper showing to the trial court that they exist in order to successfully obtain an order that sets aside a judicial foreclosure sale.

Id. at 518.

The objection filed below raised only two grounds to support setting aside the foreclosure sale: (1) that Edelsberg had “tendered his payoff to the Association,” and (2) that he was told by some unidentified person “not to worry about [it] and that the Sale would not go forward,” neither of which support vacating the instant judicial foreclosure sale.

The first of these claims was proved to be untrue. There is no evidence that Edelsberg tendered payment to the Association at any time before March 15, 2013. And, because the final judgment issued below stated that Edelsberg’s right of redemption terminated upon filing of a certificate of sale, by the time Edelsberg filed his objection, his right to redeem simply by tendering payment had already passed. See § 45.0315, Fla. Stat. (2013) (providing “[a]t any time before the later of the filing of a certificate of sale by the clerk of the court or the time specified in the judgment, order, or decree of foreclosure, the mortgagor or the holder of any subordinate interest may cure the mortgagor’s indebtedness and prevent a foreclosure sale by paying the amount of moneys specified in the judgment, order, or decree of foreclosure”); see also YEMC Constr. & Dev., Inc. v. Inter Ser, U.S.A., Inc., 884 So.2d 446, 448 (Fla. 3d DCA 2004) (confirming that a “trial court [was] without authority to extend the period of redemption” after the filing of a certificate of sale where the final judgment cut off the right of redemption upon filing of the certificate of sale). Edelsberg’s purported tender of payment over a month after the certificate of sale was filed, therefore, provides no support for setting aside the foreclosure sale.

His claim that he was told not to worry about a sale that it would not go forward also will not support relief. This claim amounts to no more than a failure to act diligently and according to the law on Edelsberg’s part. There is no evidence that anyone from the Association represented anything to Edelsberg. Rather, viewing the evidence in the light most favorable to Edelsberg, the testimony was that Edelsberg, who was represented by counsel throughout, only talked to his neighbor about the foreclosure judgment and based on a purported statement by the neighbor took no action to protect his interests from a consent final judgment and scheduled sale. This is not evidence of irregularity, mistake, or surprise, or other equitable ground on which a foreclosure sale may be set aside. As this court said in John Crescent, Inc. v. Schwartz, 382 So.2d 383, 386 (Fla. 4th DCA 1980), “we [are not] cognizant of[ ] any authority which would support the proposition that a party can gain relief from a judicial sale solely by reference to that party’s own lack of diligence.” See Chase Home Loans, LLC., v. Sosa, 104 So.3d 1240 (Fla. 3d DCA 2012) (concluding that mortgagor’s wife’s alleged mental instability was insufficient to constitute mistake, inadvertence, surprise, or excusable neglect, that would support a motion to vacate a foreclosure sale where the mortgagor claimed that his wife had actively concealed the foreclosure proceedings by hiding all notifications under the sofa). The objection to the judicial sale should have been denied.

Accordingly, we reverse the order vacating the judicial sale and remand for further proceedings consistent herewith.

      . Paul Lazarus, Edelsberg’s "neighbor,” who is an attorney and was the former president of the Association, testified that while he did recall a conversation with Edelsberg after the foreclosure judgment was issued, Edelsberg could not have been acting under the mistaken impression that Lazarus was speaking on behalf of the Association (no matter what representations he made) since Edelsberg lived across the street from the Association president:
      Q: Do you believe that when Joey was in touch with you that he could have relied upon the fact that based upon your having been president for so long that you were still acting in that capacity?
      A: No. I made it very clear that I was not president. Joey lives across the street from the current president. Joey knew I was not President.
      Lazarus also denied having advised Edelsberg not to worry that a sale would not take place:
      Q. [Ms. Bowen]: And at any time did you instruct or advise Mr. Edelsberg that the sale would not go forward?
      A. [Lazarus]: No.

      THE COURT: Mr. Lazarus, was there ever a statement made by you to the effect that "These condo sales never go through if there’s a first mortgage?”
      THE WITNESS [Lazarus]: No.

      . We, like our sister Court, apply the provisions of Chapter 45 to foreclosures of homeowners’ association liens. See § 720.3085(l)(c), Fla. Stat. (2013) (providing that an "association may bring an action in its name to foreclose a lien for assessments in the same manner in which a mortgage of real property is foreclosed”); Aegis Props. of S. Fla., LLC v. Avalon Master Homeowner Ass’n, Inc., 37 So.3d 960 (Fla. 4th DCA 2010) (applying chapter 45 procedure to a homeowner lien foreclosure action).


author: BENTON, J.

text:
    Wilmer P. GAFF, as Personal Representative of the Estate of Lennette Gaff, individually as surviving spouse, on behalf of the estate, and on behalf of Lewis J. Gaff, surviving child, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY; Philip Morris USA, Inc.; Lorillard Tobacco Company; Lorillard, Inc.; Liggett Group, LLC (f/k/a Liggett Group, Inc., f/k/a Brooke Group, Ltd., Inc., f/k/a Liggett & Myers Tobacco Company); and Vector Group, Inc. (f/k/a Brooke Group, Ltd., Inc.), Appellees.
    No. 1D12-1874.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2013.

      Steven L. Brannock, Celene H. Hum-phries, Sarah C. Pellenbarg and Tyler K. Pitchford of Brannock & Humphries, Tampa; Matthew D. Schultz of Levin, Papanto-nio, Thomas, Mitchell, Rafferty & Proctor, P.A., Pensacola, for Appellant.
    Gregory G. Katsas of Jones Day, Washington, D.C., Charles F. Beall, Jr. and Larry Hill of Moore, Hill & Westmoreland, P.A., Pensacola, for Appellee R.J. Reynolds; Karen H. Curtis of Clarke, Silverg-late, P.A., Miami for Appellees Liggett Group LLC and Vector Group Ltd., Inc.; Elliot H. Scherker, David L. Ross, Julissa Rodriguez, and Stephanie L. Varela of Greenberg Traurig, P.A., Miami, for Ap-pellee Lorillard Tobacco Company.
   BENTON, J.

As personal representative of the estate of Lennette Gaff, as surviving spouse of Lennette Gaff, and on behalf of Ms. Gaffs surviving child, Wilmer Gaff asks us to overturn summary final judgment entered against him on grounds the statute of limitations bars wrongful death claims against R.J. Reynolds Tobacco Company, Philip Morris USA, Inc., Lorillard Tobacco Company, Lorillard, Inc., Liggett Group, LLC, and Vector Group, Inc. (Tobacco Defendants) on account of Ms. Gaffs death in 1995. We affirm.

As personal representative of Lennette’s estate, Mr. Gaff filed a notice to .opt out of the Engle class action litigation in 1997. See Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006). His arguments that this 1997 opt-out notice was “superseded” or rendered nugatory by the decision in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006); that the notice to opt out was not effective because the Engle trial court never entered an order acknowledging the notice; that -the notice was ineffective because Mr. Gaff had, not been formally appointed as personal representative at the time notice was filed; and that Mr. Gaff lacked authority as personal representative to “opt out the individual survivors’ claims” are unavailing. We reject each of them on the authority of today’s decision in Roughton v. R.J. Reynolds Tobacco Company, No. 1D12-2848, 129 So.3d 1145, 2013 WL 6865402 (Fla. 1st DCA Dec.31, 2013). When Mr. Gaff filed the statement opting out, the estate ceased to be a party to the Engle class action. See id. See also In re Brand Name Prescription Drugs Antitrust Litig., 115 F.3d 456, 457 (7th Cir.1997) (“Having opted out of the class action, they were no longer members of the class and so in no sense were parties.”).

A non-party must secure a court order to (re)join an action, once the deadline to amend pleadings as a matter of course has passed. See Fla. R. Civ. P. 1.250(c). Mr. Gaff acknowledges that the trial court never ruled on his motion seeking readmission to the class and has not appealed any putative denial of the motion. We reject his assertion that a motion seeking readmission to the Engle class filed June 28, 1999, almost one year after the trial proceedings began, should be deemed implicitly granted because the En-gle trial court had (explicitly) granted other motions for readmission as late as May of 1999.

Merely filing a motion to rejoin the class, like merely filing a motion to intervene, does not confer party status on the movant. See Bondi v. Tucker, 93 So.3d 1106, 1111 (Fla. 1st DCA 2012) (“Even a party able to intervene as a matter of right must obtain a court order allowing intervention. An order allowing intervention, albeit of the Attorney General, is no mere formality. A court has discretion in imposing any conditions on the intervenor necessary to preserve the original parties’ rights, inasmuch as ‘the rights of an inter-venor are subordinate to the rights of the parties.’ ” (citations omitted)); Fla. R. Civ. P. 1.230, Authors’ Comment-1967 (“[T]he court has full control over intervention, including the extent thereof; although intervention under the rule is classified as of right, there must be an application made to the court, and the court in its discretion, considering the time of application as well as other factors, may deny the intervention or allow it upon conditions.”). See also John G. Grubbs, Inc. v. Suncoast Excavating, Inc., 594 So.2d 346, 347 (Fla. 5th DCA 1992).

For purposes of decision, we assume the filing of the Engle class action complaint tolled the running of the statute of limitations as to all potential members of the class, including Ms. Gaff and her personal representative. See Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 350-51, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983); Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554-55, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974); Browning v. Angelfish Swim Sch., Inc., 1 So.3d 355, 362 n. 12 (Fla. 3d DCA 2009) (Shepherd, J., concurring in part and dissenting in part) (noting “the statute of limitations typically is tolled for asserted class members who later file actions of their own from the time a class complaint is filed to the time certification is denied”). The pleadings in the present case allege Ms. Gaff was diagnosed with lung cancer in March of 1995 and succumbed to the disease later in the year. The limitations period began to run (again, if not for the first time), however, when Mr. Gaff filed his statement opting out of the class. See, e.g., Tosti v. City of Los Angeles, 754 F.2d 1485, 1489 (9th Cir.1985) (noting that Tosti had three and a half months in which to file her lawsuit, before the statute of limitations was tolled by the filing of a class action, and that the statute began to run anew on the day Tosti opted out of the class action).

As we said in Roughton: “Once the statute of limitations ran on a former class member’s individual claim, the claim was forever barred. See, e.g., Wood v. Eli Lilly & Co., 701 So.2d 344, 346 (Fla.1997) (‘[T]his Court has held that once a claim is extinguished by the statute of limitations, it cannot be revived as a result of a subsequent court decision. In re Estate of Smith, 685 So.2d 1206, 1210 (Fla.[1997])’).” Roughton, 129 So.3d at 1150. The learned trial judge properly entered summary judgment on Mr. Gaffs complaint, which was filed in 2007, ten years after he had filed the statement opting out of the Engle class action and twelve years after his wife died. By that time, the limitations period had long since run.

Affirmed.

VAN NORTWICK and PADOVANO, JJ., concur.

      . The "opt-out" statement, filed July 11, 1997, reads as follows:
      THE UNDERSIGNED, Wilmer "Perry” Gaff as Personal Representative of the Estate of Lennette Gaff ... requests to be excluded from the class of Plaintiffs in this action, as permitted by notice of the court to class members dated November 21, 1996.
      DATED: 7/1/97 Wilmer Perry Gaff WILMER "PERRY” GAFF AS PERSONAL REPRESENTATIVE OF THE ESTATE OF LENNETTE GAFF

      . See Carratelli v. State, 832 So.2d 850, 856 (Fla. 4th DCA 2002) ("A plethora of Florida cases support the notion that a party must obtain a ruling from the trial court in order to preserve an issue for appellate review.”).

      . The procedural history of the Engle class action litigation is set out in pertinent part in Roughton v. R.J. Reynolds Tobacco Company, No. 1D12-2848, 129 So.3d 1145, 2013 WL 6865402 (Fla. 1st DCA Dec.31, 2013).

      . The Engle trial court orders granting motions for readmission to the class do not support the conclusion that the Engle trial court adopted the position that all motions for readmission would be granted. The motion seeking Mr. Gaff's readmission requested, moreover, that the court permit him to rejoin the class action "as it relates to liability only.” The May 11, 1999 order granting readmission for other class members who had previously opted out (relied on by Mr. Gaff), ordered that the petitioners would "be subject to the same conditions that attend the ENGLE CLASS ACTION LAWSUIT.”


text:
    Lucy ROUGHTON, as Personal Representative of the Estate of Daniel Dean Roughton, as surviving spouse, and on behalf of the estate, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY; Philip Morris USA, Inc.; Lorillard Tobacco Company; Lorillard, Inc.; Liggett Group, LLC (f/k/a Liggett Group, Inc., f/k/a Brooke Group, Ltd., Inc., f/k/a Liggett & Myers Tobacco Company); and Vector Groupoup, Inc. (f/ka Brooke Group, Ltd., Inc.), Appellees.
    No. 1D12-2848.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2013.

      Steven L. Brannock, Celene H. Hum-phries, Sarah C. Pellenbarg and Tyler K. Pitchford of Brannock & Humphries, Tampa; Matthew D. Schultz of Levin, Papanto-nio, Thomas, Mitchell, Rafferty & Proctor, P.A., Pensacola, for Appellant.
    Gregory G. Katsas of Jones Day, Washington, D.C., Charles F. Beall, Jr. and Larry Hill of Moore, Hill & Westmoreland, P.A., Pensacola, for Appellee R.J. Reynolds.
   BENTON, J.

Both as personal representative of the estate of Daniel Dean Roughton and on her own behalf, Lucy Roughton, Daniel’s widow, asks us to overturn summary final judgment entered against her on grounds the statute of limitations bars wrongful death claims against R.J. Reynolds Tobacco Co., Lorillard Tobacco Company, Philip Morris USA, Inc., Liggett Group LLC, and Vector Group Ltd., Inc. (Tobacco Defendants) on account of Mr. Roughton’s death on May 2, 1997. We reject the contention that the Florida Supreme Court, in deciding Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006), nullified the notice to opt out of the Engle class action she filed in 1997, and affirm.

I.

Filed in 1994 against cigarette companies and tobacco industry organizations, Engle began as a nationwide class action seeking redress for injuries caused by smoking. Id. at 1256. On interlocutory appeal, the Third District approved the trial court’s recognition of a class, but pared the class down by eliminating plaintiffs with no connection to Florida. R.J. Reynolds Tobacco Co. v. Engle, 672 So.2d 39, 42 (Fla. 3d DCA 1996). Thereafter, on November 21, 1996, the Engle trial court entered an Order on Class Notice that provided in part:

1. In RJ Reynolds Tobacco Co. v. Engle, et. al., 672 So.2d 39 (Fla. 3d DCA 1996), rev. den., October 2, 1996, the Third District Court of Appeal of Florida affirmed the Order of October 31, 1994, granting class certification, with the modification that the class be limited to “All Florida Citizens and Residents.” The class was defined by the Third District Court of Appeal of Florida in its January 31, 1996 Decision, as follows:
“All Florida citizens and residents, and their survivors, who have suffered, presently suffer or have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine ...
26. Class members shall have one hundred eighty days (six months) from the date of the first notice publication [] to opt out from the class action.

Some two months after her husband died, Ms. Roughton filed a timely statement on July 7, 1997, asking to be excluded from the Engle class. Her notice to opt out reads as follows:

THE UNDERSIGNED, Lucy A.E. Roughton as Personal Representative of the Estate of Daniel Dean Roughton of [address], requests to be excluded from the class of Plaintiffs in this action as permitted by notice of the Court to class members dated November 21,1996.
DATED: 7-7-97 Lucy A.E. Roughton LUCY A.E. ROUGHTON AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DANIEL DEAN ROUGHTON

See Fla. R. Civ. P. 1.220(d)(2)(A) (requiring that notice be given in class actions that “any member of the class who files a statement with the court by the date specified in the notice asking to be excluded shall be excluded from the class”).

In February of 1998, after Ms. Rough-ton had opted out of the class, the trial court divided the Engle proceedings into three phases: In Phase I, the jury considered “the issues of liability and entitlement to punitive damages for the class as a whole,” and rendered a verdict against the defendants “on all counts.” Id. at 1256-57. In Phase II, the same jury determined entitlement to and the amount of compensatory damages for the individual class representatives and a punitive damage award for the class as a whole. Id. at 1257. “According to the trial plan, in Phase III, new juries [wejre to decide the individual liability and compensatory damages claims for each class member (estimated to number approximately 700,000).” Id. at 1258.

Before Phase III proceedings began, the Engle defendants appealed the Phase II verdicts. On appeal, the Third District ruled “that the predominance and superiority requirements for class action ha[d] not been met.” Liggett Group, Inc. v. Engle, 853 So.2d 434, 449 (Fla. 3d DCA 2003). On that basis, the Third District concluded the “entire judgment must be reversed,” and remanded with instructions that the class be decertified. Id. at 470.

On further review in the Florida Supreme Court, that court disagreed in no uncertain terms, ruling that “[ijnvalidating the completed class action proceedings on manageability and superiority grounds after a trial has occurred does not accord with common sense or logic.” Engle, 945 So.2d at 1267. Concluding, however, that “continued class action treatment for Phase III of the trial plan is not feasible because individualized issues such as legal causation, comparative fault, and damages predominate,” id. at 1268, the supreme court concluded that the “pragmatic solution [wa]s to now decertify the class, retaining the jury’s Phase I findings other than those on the fraud and intentional infliction of emotional distress claims, which involved highly individualized determinations, and the finding on entitlement to punitive damages questions, which was premature.” Id. at 1269. Our supreme court ruled that “[ijndividual plaintiffs within the class will be permitted to proceed individually with the findings set forth above given res judicata effect in any subsequent trial between individual class members and the defendants, provided such action is filed within one year of the mandate in this case.” Id. at 1277 (emphasis supplied).

On October 30, 2007, Ms. Roughton filed a complaint on behalf of the estate and herself individually against the Tobacco Defendants in the First Circuit. The Tobacco Defendants moved for summary judgment, arguing that the Engle decision setting the deadline for filing individual actions was not applicable because Ms. Roughton had opted out of the Engle class nine years earlier and the limitations period had expired years before she filed her complaint. The trial court agreed, pointing out that Ms. Roughton had taken no steps to rejoin the Engle class action, after filing her notice to opt out of the class, and that suit was not filed until after the statute of limitations had run. On this ground, the trial court entered the final summary judgment in favor of the Tobacco Defendants that gave rise to the present appeal.

II.

Ms. Roughton argues the opt-out notice she filed in 1997 was “superseded” or “nullified” by the supreme court’s Engle decision in 2006. She asserts that the supreme court, in prospectively decertify-ing the class, “entirely recreated the nature of the Engle class” and “allowed all survivors to proceed with individual lawsuits utilizing the Engle findings as res judicata on an ‘opt in’ basis.” She relies almost entirely on the statement in the supreme court’s Engle opinion that “[t]he class consists of all Florida residents fitting the class description as of the trial court’s order dated November 21, 1996.” Id. at 1277.

But in this sentence the supreme court was addressing the appropriate “cut-off date for class membership” only in order to resolve whether the Engle class representatives were “properly included within the class as certified.” Id. at 1274-75. The supreme court rejected the Third District’s view that the appropriate cut-off date for class membership was October 31, 1994, the date the “nationwide” class was initially certified:

The plain language of the class certification indicates that the trial court anticipated that the class would be cut off or limited to the date of final certification. The phrase “who have suffered, presently suffer or have died” supports the view that the class should include only those people who were affected in the past or who were presently suffering at the time the class was recertified by the trial court. Moreover, although not controlling, federal case law supports the interpretation that the date of final class certification should be presumed the proper cut-off date for class membership.
In our view, it is reasonable to conclude that the cut-off date for class membership is November[ ] 21,1996, the date the trial court recertified the class and issued an amended order conforming the class description to the Third District’s decision. It was with this November 21, 1996, order that the circuit court first ordered that notice to potential class members be published in newspapers and magazines circulated in Florida.

Id. at 1275 (citations omitted). Ms. Roughton’s focus on a single statement at the conclusion of the court’s opinion, merely summarizing the earlier analysis of the appropriate “cut-off date for class membership,” ignores the context in which the court analyzed “class membership.” Id. at 1275. See, e.g., Bishop ex rel. Estate of Ramsay v. R.J. Reynolds Tobacco Co., 96 So.3d 464, 466-68 (Fla. 5th DCA 2012) (“In its opinion, the court held that November 21, 1996, the date that the trial court issued its class recertification, order, was the cut-off date for Engle class inclusion.... Engle III clearly holds that November 21, 1996, is a cut-off date for class inclusion and nothing more.”).

The supreme court’s Engle opinion does not address the effect of the decision on former class members who had opted out of the class. Nothing in the text of the opinion implies that the supreme court intended that former class members who timely opted out of the class but did not then file individual suits could initiate individual actions after the statute of limitations had run.

Once the statute of limitations ran on a former class member’s individual claim, the claim was forever barred. See, e.g., Wood v. Eli Lilly & Co., 701 So.2d 344, 346 (Fla.1997) (“[T]his Court has held that once a claim is extinguished by the statute of limitations, it cannot be revived as a result of a subsequent court decision. In re Estate of Smith, 685 So.2d 1206, 1210 (Fla.[1997])”); Wiley v. Roof, 641 So.2d 66, 68 (Fla.1994) (“Regardless of whether the statute of limitations pertains to a right or a remedy, retroactively applying a new statute of limitations robs both plaintiffs and defendants of the reliability and predictability of the law.... The law does not prioritize rights over remedies. Once the defense of the statute of limitations has accrued, it is protected as a property interest just as the plaintiffs right to commence an action is a valid and protected property interest.... Florida’s statute of limitations, section 95.011, bars all action unless commenced within designated times. Once barred, the legislature cannot subsequently declare that ‘we change our mind on this type of claim’ and then resurrect it. Once an action is barred, a property right to be free from a claim has accrued.’ ”).

The Engle court’s decision to approve prior class treatment for liability, but prospectively decertify the class and allow class members to initiate individual damages actions, was not without precedent. See Engle, 945 So.2d at 1268 (citing Olden v. LaFarge Corp., 383 F.3d 495, 509 (6th Cir.2004); Carnegie v. Household Int’l, Inc., 376 F.3d 656, 661 (7th Cir.2004); Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir.1996)). Despite this, Ms. Roughton has cited no decision from any jurisdiction, and there is none that we are aware of, where the decision to decer-tify a class prospectively and permit class members to pursue individual actions for damages, after a determination of liability, was held to abrogate the statute of limitations and re-open the class to those who had previously opted out.

III.

“By statute, the personal representative is the only party with standing to bring a wrongful death action to recover damages for the benefit of the decedent’s survivors and the estate. The survivors may not bring separate legal actions.” Wagner, Vaughan, McLaughlin & Brennan, P.A. v. Kennedy Law Group, 64 So.3d 1187, 1191 (Fla.2011) (citations omitted). See also Kadlecik v. Haim, 79 So.3d 892, 893 (Fla. 5th DCA 2012) (“Under Florida’s Wrongful Death Act, ... [t]he personal representative has the exclusive authority to conduct litigation and settle all claims. The survivors are not parties to the wrongful death litigation, even when the claims are brought for their benefit.”) (citations omitted); Thompson v. Hodson, 825 So.2d 941, 949, 953 (Fla. 1st DCA 2002) (“The personal representative has statutory responsibility to settle a wrongful death action.... A survivor does not have actual veto power over the personal representative’s settlement decision. Instead, if the survivor objects to amount or apportionment, the authority of the court may be invoked.”); Jones v. Zagrodnik, 600 So.2d 1265, 1266 (Fla. 5th DCA 1992) (holding that valid release of rights by the personal representative of the estate released the rights of the decedent’s after-born child, born after the release, as well as other survivors of the decedent).

Ms. Roughton argues that her opt-out notice was ineffective because she had not been formally appointed personal representative of her husband’s estate at the time she signed and filed the notice to opt out: The probate court did not appoint Ms. Roughton as personal representative of the estate until November of 2007 (after the date the complaint at issue was filed). But on this point section 733.601, Florida Statutes (1997), controls:

The duties and powers of a personal representative commence upon his or. her appointment. The powers of a personal representative relate back in time to give acts by the person appointed, occurring before appointment and beneficial to the estate, the same effect as those occurring thereafter.

This statutory provision had not changed either by the time the complaint was filed or by the time Ms. Roughton was appointed personal representative. The Comment to Uniform Probate Code § 3-701, which contains identical substantive language, states: “This section codifies the doctrine that the authority of a personal representative relates back to death from the moment it arises.”

Ms. Roughton maintains the Tobacco Defendants “cited no authority that opting out of a case and letting the statute of limitations run is in any way ‘beneficial’ within the meaning of Section 733.601,” and that her subsequent appointment “does not relate back to this non-beneficial and repudiated act.” But the statutory requirement that the act be “beneficial to the estate” was not intended to let a de facto personal representative disavow her actions simply because later events made it seem desirable to do so. The relevant question is whether the personal representative could have reasonably believed that opting out of the Engle class action was beneficial to the estate at the time the opt-out notice was filed. See, e.g., Estate of Wesolowski v. Indus. Comm’n of Arizona, 192 Ariz. 326, 965 P.2d 60, 64 (1998) (noting the contract, signed before appointment as personal representative was “clearly intended at the time of signing to benefit the estate” and therefore bound the estate). Opting out did not itself cause the statute of limitations to run on the wrongful death action, moreover. The failure to file a timely, separate wrongful death action after opting out caused the problem.

We also reject Ms. Roughton’s argument that, even if she acted for the benefit of the estate when filing the opt-out notice, she had no power to “opt out any individual survivor’s claim” and that any notice filed by the estate on behalf of the survivors should reflect that the individual survivors voluntarily and knowingly relinquished their individual rights. Florida’s Wrongful Death Act provides that the “action shall be brought by the decedent’s personal representative, who shall recover for the benefit of the decedent’s survivors and estate all damages, as specified in this act, caused by the injury resulting in death.” § 768.20, Fla. Stat. (1997). The Act “eliminates the multiplicity of suits that resulted from each survivor bringing an independent action and avoids survivors racing to get the first judgment.” Wagner, Vaughan, McLaughlin & Brennan, P.A., 64 So.3d at 1191.

IV.

Finally, we reject Ms. Roughton’s argument that the opt-out notice was “invalid” because the Engle trial court did not enter an order acknowledging the notices individually and listing the names of every person or entity that opted out of the class. Florida Rule of Civil Procedure 1.220(d)(2) requires that “notice shall inform each member of the class that (A) any member of the class who files a statement with the court by the date specified in the notice asking to be excluded shall be excluded from the class, (B) the judgment, whether favorable or not, will include all members who do not request exclusion. ...” The Committee Notes to Rule 1.220 state that the “rule is based on Federal Rule of Civil Procedure 23, but a number of changes have been made to eliminate problems in the federal rule through court decisions. Generally, the rule provides for ... notice to all members of the class, provisions for the members of the class to exclude themselves.... ” The notice issued by the Engle trial court stated the “judgment(s) in this Cause shall be binding on all class members unless you advise the Court in writing ... that you wish to be excluded,” and that “[i]f you exclude yourself from the Engle class action by the postmarked deadline, you will not be bound by the class judgment(s).” Both the rule and the published notice make clear that no order allowing a class member to opt out was required. Ms. Roughton’s notice to opt out was effective upon filing.

Affirmed.

VAN NORTWICK and PADOVANO, JJ., concur.

      . The named defendants in the instant case were all parties to the Florida Supreme Court’s decision in Engle v. Liggett Group, Inc., 945 So.2d 1246, 1256 n. 3 (Fla.2006), with the exception of Vector Group Ltd., Inc. Ms. Roughton alleged in her complaint that a "sham reorganization established Vector as the parent of ... Liggett.” In its answer, Vector Group denied that either it or any of its predecessors was a defendant in Engle.

        . The legal notice approved for publication provided:
      4. If you wish to remain a member of the Engle Class you do not have to do anything at this time. The lawsuit will be prosecuted on your behalf by the representative Plaintiffs and Class Counsel....
      5. If you wish to be excluded from the class, you must express your desire for exclusion in writing, signed by you and postmarked no later than July 15, 1997. The judgment(s) in this Cause shall be binding on all class members unless you advise the Court in writing and signed by you that you wish to be excluded.... If you exclude yourself from the Engle class action by the postmarked deadline, you will not be bound by the class judgment(s), you will not share in any class recovery and you may pursue any individual claim you have through private counsel at your own expense.

      . The complaint asserted the action was brought pursuant to Florida’s Wrongful Death Act, sections 768.16-768.27, Florida Statutes (1997), in accordance with Engle.

      . The court specifically addressed the statute of limitations only when determining that the claims of one of the class representatives was barred because the jury found he knew or should have known, more than four years before the class action was filed, that he was addicted to smoking and that his cancer could have been caused by smoking. See id. at 1276; Liggett Group Inc. v. Engle, 853 So.2d 434, 453-54 n. 23 (Fla. 3d DCA 2003).

      . Properly understood, the opinion indicates the decision applies only to plaintiffs who had remained class members during Phase I and Phase II. The court explained that the doctrine of res judicata applies when there is a " 'judgment on the merits rendered in a former suit between the same parties or their privies,’ " stated that "[¡Invalidating the completed class action proceedings on manageability and superiority grounds after a trial has occurred does not accord with common sense or logic,” determined the "pragmatic solution [wa]s to now decertify the class, retaining the jury’s Phase I findings other than those ... which involved highly individualized determinations,” and held that "the Phase I common core findings we approved above will have res judicata effect in” individual damages actions initiated by class members. Engle, 945 So.2d at 1259, 1267, 1269 (citation omitted). Potential class members who filed timely notices to opt out of the class action would not logically fall within the group of plaintiffs entitled to rely on the res judicata effect of the Phase I jury findings.

      . Section 733.601, Florida Statutes (2007), provided in part:
      The duties and powers of a personal representative commence upon appointment. The powers of a personal representative relate back in time to give acts by the person appointed, occurring before appointment and beneficial to the estate, the same effect as those occurring after appointment.

      . Ms. Roughton's argument that it was not beneficial to the estate to opt out of the class action at the time she did so rings hollow in light of arguments she makes that the supreme court’s decision in Engle nullified all prior notices to opt out of the class action: She argued that the "originally structured litigation looked much like the type of class action that one might choose to opt out from — a large, difficult to manage class that risked small payments to class members, with very little representation of individual con-cems. The newly structured class provided each plaintiff with the opportunity to prove his or her individual damages before a jury, with an attorney of his or her choosing, and also provided that issues of causation, comparative fault and punitive damages would be decided on an individual basis. This was an entirely different case — -and many of the original plaintiffs who had filed opt outs would never have opted out given these circumstances.”
      Under the Engle trial court's plan, issued on February 4, 1998, trial proceedings were divided into three phases. "According to the trial plan, in Phase III, new juries [wejre to decide the individual liability and compensatory damages claims for each class member. ... Thereafter, the plan contemplated that the trial court would divide the punitive damages previously determined equally among any successful class members.” Engle, 945 So.2d at 1258. Despite the trial court order establishing individual juries for compensatory damages claims, Ms. Roughton did not file a motion to re-enter the class. Others did, and the Engle trial court entered orders granting such motions at least as late as May 12, 1999.

      . On November 17, 1999, the Engle trial court did enter an "Order on Adequacy of Class Notice,” which concluded that "any person to whom the class definition applies who did not properly opt-out of the class in a timely fashion, i.e., by July 15, 1997, is a member of the Engle class.” The parties also note that the Engle trial court subsequently ruled on motions to re-admit some who had previously opted out of the class action by the July 15, 1997 deadline, indicating the trial court determined the notices to opt out were effective without court order.