author: LOGUE, J.

text:
    PORSCHE CARS NORTH AMERICA, INC., etc., Appellant, v. Peter DIAMOND, et al., Appellees.
    No. 3D12-2829.
    District Court of Appeal of Florida, Third District.
    June 11, 2014.

      DLA Piper LLP, and William F. Kiniry, Jr., Philadelphia, and Fredrick H.L. McClure and E. Colin Thompson, Tampa, for appellant.
    Eaton & Wolk, PL, and Douglas F. Eaton and William G. Wolk, Miami, for appel-lees.
    Before LAGOA, SALTER, and LOGUE, JJ.
   LOGUE, J.

We have for review a trial order certifying a class action against Porsche Cars North America, Inc. (“Distributor”). In analyzing whether common issues will predominate over individual issues, the trial court used an outdated definition of unfair trade practices. When the updated definition is used, common issues will not predominate. We accordingly reverse and remand.

BACKGROUND

A. Distributor.

Distributor is a wholly-owned subsidiary of Porsche A.G. (“Porsche”). Porsche is the German company that designs and manufactures Porsche vehicles for worldwide distribution. Distributor, the exclusive importer and distributor of Porsche cars in the United States, purchases vehicles and parts from Porsche and sells them to authorized dealerships in the United States for subsequent sale to consumers. Distributor does not sell directly to consumers.

B. High Intensity Discharge Headlights.

This case focuses on Porsche’s High Intensity Discharge Headlights (“Headlights”). The Headlights are an upscale amenity in the luxury car market. The intense blue-white light given by the Headlights is closer to natural daylight than the yellowish light of regular headlights. The Headlights provide better nighttime visibility than older types of headlights. Since model year 2000, the Headlights have been offered as standard or optional equipment across the Porsche vehicle line. The Headlights were mounted on modules that were slid into a plastic tray in the fender and clamped in place. This mounting made the Headlights relatively less expensive to install and repair. At the same time, however, it made them easier to steal. A knowledgeable thief could pry the Headlights out of the vehicle in a few moments by forcing a large screwdriver or pry bar under the lights, bending the clamp, and breaking either the head lamp unit or baseplate. This process would also damage the fender, sometimes extensively.

C.Crime Wave of Headlight Thefts.

Distributor became aware in late 2003 or early 2004 that the Headlights were increasingly becoming the target of theft. Distributor reported this problem to Porsche: “According to a Jan. 12, 2004 article in the Miami Herald, theft of Porsche and Nissan headlights is becoming a major problem. Over 60 thefts have occurred in one Miami suburb over the last year.” After exploring various solutions, Porsche determined that design changes would not eliminate the problem of theft and would make the vehicles more expensive to purchase and repair. No changes were made to the Headlights.

The City of Coral Gables experienced a tide of headlight thefts from vehicles of all makes and models that rose in 2002, crested in 2004, and ebbed in 2006. Although headlights were stolen from all makes and models of cars, the rate of headlight thefts from Porsche vehicles was disproportionately higher than the rates of thefts from other cars. We summarize pertinent details provided in a larger chart submitted into evidence as follows:

The Coral Gables Police Department formed a task force that undertook efforts to eliminate headlight theft. Arrests were made and the incidence of headlight thefts from all cars began to steadily and significantly decline. Since 2007, reported headlight thefts have become increasingly rare in Coral Gables. No evidence indicated that the rate of theft in Coral Gables projected across the State; to the contrary, some evidence indicated the problem was regional and centered mainly in South Florida.

D. The Class Representatives.

Class representatives, Peter Diamond, Irma Matos, Richard Sharp, and Luis Alayo-Riera, are all residents of Miami-Dade County, Florida, who purchased replacement headlights after the Headlights in their vehicles were stolen. Some class representatives knew about the problem of thefts when they leased or purchased their vehicle, others did not. Irma Matos, for example, had no knowledge regarding the special characteristics of the Headlights and no idea that the Headlights were targeted for theft until after three different sets of Headlights were stolen. Exasperated after the three incidents of stolen Headlights, she terminated her lease early and traded her vehicle for a BMW.

Luis Alayo-Riera, on the other hand, was a more sophisticated and knowledgeable buyer. A self-described “Porsche fanatic” and “car enthusiast,” he was attracted by the characteristics of the Headlights. From both discussions with friends and articles he read, he learned about the problem of the thefts in South Florida. Nevertheless, he intentionally leased a Porsche equipped with the Headlights. Later, when thieves twice stole his Headlights, he consciously chose to have the same type of Headlights reinstalled. After the second incident, however, he began taking extra security measures, including parking his car next to the security guard post in the office parking lot where the thefts had occurred. The thefts stopped. He subsequently purchased the vehicle with the Headlights. When he finally sold the vehicle, he admitted the car suffered no diminished value due to the Headlights. To the contrary, he maintained the Headlights enhanced the sale price of the car.

E. The Legal Theory.

In their claim for a class action, the class representatives assert unfair trade practices and unjust enrichment claims. They allege Distributor acted unfairly by profiting from distributing a product highly susceptible to theft without taking remedial steps. Specifically, Distributor failed to “notify owners of the flaw and potential risk of theft so they could take their own precautions,” to “offer replacement lights at reduced costs,” and to “work with law enforcement agencies to assist in the prevention of the theft of their headlights.” This course of conduct, the representatives members allege, violated the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”). §§ 501.201-.213, Fla. Stat. They seek consequential damages in the form of the cost of repairing the cars and replacing the stolen Headlights; they do not claim that the vehicles they purchased or leased were worth less than the prices paid.

The unjust enrichment claim states that plaintiffs conferred a benefit on Distributor by purchasing replacement Headlights which were ultimately supplied by Distributor, and that it would be inequitable to allow Distributor to profit from customer losses caused by a design flaw of which Distributor was fully aware yet failed to remedy.

F. The Classes Certified.

Plaintiffs sought certification of a class consisting of:

All Florida owners or lessees of Porsche 911 (models 996 and 997), Boxster (986 and 987) or Cayman vehicles whose HID headlights were forcibly removed from outside their vehicles during the period from May 31, 2002 until present.

Following a hearing on the motion, the trial court granted the motion and certified the class described above to pursue the FDUTPA violation claim. The trial court also certified two subclasses to pursue the unjust enrichment claims defined as:

Unjust Enrichment Subclass 1: All owners described above whose headlights were removed on only one occasion during the time period described above.
Unjust Enrichment Subclass 2: All owners described above whose headlights were removed on more than one occasion during the time period described above.

Distributor appeals that order.

ANALYSIS

I. Determining Class Certification: Will the Proof of the Class Representatives’ Case Necessarily Prove the Case of the Absent Class Members?

The threshold requirements for class certification are well known: a class will be certified based upon a showing of numer-osity, commonality, typicality, and adequacy of representation. Fla. R. Civ. P. 1.220(a). In addition to meeting these threshold requirements, the class must fall within one of the three different types of class actions established in Florida Rule of Civil Procedure 1.220(b).

The focus of a class certification hearing is not on whether the class representatives will prevail at trial. Sosa v. Safeway Premium Fin. Co., 73 So.3d 91, 105 (Fla.2011). Instead, the focus is on “whether a litigant’s claim is suited for class certification” and whether the proposed class provides “a superior method for the fair and efficient adjudication of the controversy.” Id. at 105-06. “However, if consequential to its consideration of whether to certify a class, a trial court may consider evidence on the merits of the case as it applies to the class certification requirements.” Id. at 105'.

The trial court certified the present case as a rule 1.220(b)(3) class action. In a(b)(3) class action, not all issues of fact and law are common, but common issues predominate over individual issues. Fla. R. Civ. P. 1.220(b)(3). Common issues predominate when, considering both the rights and duties of the class members, the proof offered by the class representatives will necessarily prove or disprove the cases of the absent class members. As the Supreme Court explained in Sosa:

[A] class representative establishes predominance if he or she demonstrates a reasonable methodology for generalized proof of class-wide impact. A class representative accomplishes this if he or she, by proving his or her own individual case, necessarily proves the cases of the other class members.

73 So.3d at 112 (internal citation omitted). The Court added that the class representative’s case must not merely raise a common question, but that proof of the class representative’s case must also “answer[ ] the question.” Id. at 111.

II. The Trial Court Used an Outdated Definition of Unfair Trade Practice.

FDUTPA declares unlawful “[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.” § 501.204(1), Fla. Stat. The term “unfair” is not defined in FDUTPA. Here, the trial judge defined unfair trade practice as one that “offends established policy” and “is immoral, unethical, oppressive, unscrupulous or substantially injurious to customers.” This definition derives from a 1964 Federal Trade Commission policy statement. See Unfair or Deceptive Advertising and Labeling of Cigarettes in Relation to the Health Hazards of Smoking, Statement of Basis and Purpose, 29 Fed. Reg. 8324, 8355 (July 2, 1964) (“1964 Policy Statement”).

In 1980, however, the Federal Trade Commission updated its definition of unfair trade practice. “The Commission’s [1980] Policy Statement was basically a refinement of an earlier three-part standard of unfairness it had set out in 1964.” Am. Fin. Servs. Ass’n v. F.T.C., 767 F.2d 957, 971 (D.C.Cir.1985). The new definition established a three-pronged test for “unfairness,” which requires that the injury to the consumer:

(1) must be substantial;
(2) must not be outweighed by any countervailing benefits to consumers or competition that the practice produces; and
(3) must be an injury that consumers themselves could not reasonably have avoided.

FTC Policy Statement on Unfairness (Dec. 17, 1980) (“1980 Policy Statement”), appended to Int’l Harvester Co., 104 F.T.C. 949, 1070 (1984); also available at http:// www.fte.gov/ftc-policy-statement-on-unfairness (last visited on June 4, 2014). An excerpt of the 1980 Policy Statement is appended to this opinion.

We must decide whether Florida law adopts the definition of unfairness contained in the 1980 Policy Statement. We hold that it does. The Legislature provided that violations of FDUTPA include violations of “[t]he standards of unfairness and deception set forth and interpreted by the Federal Trade Commission or the federal courts.” § 501.203(3)(b), Fla. Stat. (emphasis added). Included are standards of unfairness issued “as of July 1, 2013.” Id.

The reference to “standards of unfairness” “as of July 1, 2013” is the product of a long legislative history in which the Florida Legislature amended FDUTPA in 1983, 2001, 2006, and 2013, for the specific purpose of adding to Florida Law interpretations by the Federal Trade Commission or federal courts that occurred since the last statutory amendment. This series of amendments was necessary because a statute simply adopting all future changes to federal law would be an unconstitutional delegation of the power to legislate. Dep’t of Legal Affairs v. Rogers, 329 So.2d 257, 267 (Fla.1976).

In light of this history, the 1980 Policy Statement is clearly one of the “standards of unfairness” interpreted by the Federal Trade Commission and federal courts. See, e.g., In re Orkin Exterminating Co., 108 F.T.C. 263 (1986), aff'd, 849 F.2d 1354 (11th Cir.1988), cert. denied, 488 U.S. 1041, 109 S.Ct. 865, 102 L.Ed.2d 989 (1989) (discussing and applying the 1980 Policy Statement’s definition of unfair trade practice). By operation of law, therefore, it was incorporated into Florida law in the 1983 amendments to FDUTPA and readopted by the subsequent amendments. See amendments to § 501.203(3)(b), note 5, supra.

In nearby statutory sections, the Legislature reiterated that FDUTPA should be interpreted in line with federal law. For example, section 501.204(2) provides:

It is the intent of the Legislature, that, in construing subsection (1), due consideration and great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to s. 5(a)(1) of the Federal Trade Commission Act, 15 U.S.C. s. 45(a)(1) as of July 1, 2013.

FDUTPA’s reference to section 45(a)(1) of the United States Code is no coincidence. Section 45(a)(1) is the federal law upon which FDUTPA was modeled. Its language is virtually identical to section 501.204(1), Florida Statutes, which is the keystone provision of FDUTPA. Section 45(a)(1) provides: “Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.” 15 U.S.C. § 45(a)(1). The 1980 Policy Statement obviously constitutes an interpretation by the Federal Trade Commission of the term “unfair” as it is used in section 45(a)(1) and is therefore entitled to “due consideration and great weight” when construing FDUTPA.

These legislative directives are consistent with FDUTPA’s express purpose— “[t]o make state consumer protection and enforcement consistent with established policies of federal law relating to consumer protection.” § 501.202(3), Fla. Stat. Thus, FDUTPA expressly states that Florida is to be guided by and follow the interpretations of unfair trade practices under the Federal Trade Commission Act made by the Federal Trade Commission and the federal courts.

In 1994, Congress codified the 1980 Policy Statement into federal statutory law. Federal Trade Commission Act Amendments of 1994, Pub. L. No. 103-312, § 9, 108 Stat. 1691 (codified as amended at 15 U.S.C. § 45(n) (1994)) (“The Commission shall have no authority under this section or section 57a of this title to declare unlawful an act or practice on the grounds that such act or practice is unfair unless the act or practice causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to com-petitionThe codification of the 1980 Policy Statement’s definition of unfair trade practice into federal statutory law does not terminate its relevance to Florida law. Nothing in the text of FDUTPA provides that a Federal Trade Commission and federal court interpretation stops being authoritative in Florida if it becomes codified into federal law. While the definition has now been adopted by Congress, it still remains an interpretation that originated with the Federal Trade Commission and used by the federal courts before it was adopted by Congress.

Nor is this analysis altered by the fact that Florida courts, including this court, have continued to cite in passing to the definition of unfairness found in the 1964 Policy Statement. See, e.g., PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So.2d 773, 777 (Fla.2003); Suris v. Gilmore Liquidating, Inc., 651 So.2d 1282, 1283 (Fla. 3d DCA 1995); Cummings v. Warren Henry Motors, Inc., 648 So.2d 1230, 1233 (Fla. 4th DCA 1995); Urling v. Helms Exterminators, Inc., 468 So.2d 451, 453 (Fla. 1st DCA 1985). The references to the Federal Trade Commission’s 1964 definition of unfairness in these cases are not rejections of the 1980 definition. To the contrary, because they relied on the Federal Trade Commission’s 1964 Policy Statement, these cases confirm that Florida looks to Federal Trade Commission interpretations of the term “unfair trade practice.” The issue of whether the updated 1980 definition became part of Florida law was simply not before those courts.

In the present case, however, we are squarely faced with the issue of whether Florida has adopted the 1980 Federal Trade Commission definition of unfair trade practice. Following the clear and unambiguous directive of sections 501.203(3)(b), 501.204(2), and 501.202(3), Florida Statutes, we hold the 1980 Policy Statement’s definition of unfair trade practice should be used when interpreting FDUTPA.

III. Using the Correct Definition of Unfair Trade Practice, Common Issues of Law and Fact Will Not Predominate.

The trial court adopted the premise that Distributor’s actions can be found to be an unfair trade practice regardless of whether class members knew and could have avoided the risk of the Headlight thefts. From this premise, it reasoned “an individual class member’s pre-purchase knowledge of the potential risk of theft is not relevant to the Plaintiffs FDUTPA claim.” It then concluded common issues will predominate because either Distributor’s “actions will be unfair to all class members or they will not be unfair to any of them.” Because we disagree with the premise, we disagree with the conclusion.

The individual class member’s knowledge of the risk of Headlight theft bears on whether Distributor’s practice was unfair because it impacts whether the consumer could reasonably avoid the risk. Given the nature of the claim in this case — that the Headlights functioned properly as headlights but were too attractive and susceptible to theft — an individual class member’s knowledge of the risk of theft goes to the heart of his or her claim.

To prove an unfair trade practice, the class must prove that the injury caused by the allegedly unfair trade practice could not have been reasonably avoided by the consumers. See 1980 Policy Statement, supra. The idea behind the reasonably avoidable inquiry is that free and informed consumer choice is the first and best regulator of the marketplace: “[cjonsumers may act to avoid injury before it occurs if they have reason to anticipate the impending harm and the means to avoid it, or they may seek to mitigate the damage afterward if they are aware of potential avenues toward that end.” In re Orkin, 108 F.T.C. at 366. For this reason, “consumer information is central to this prong of the unfairness inquiry.” Orkin Exterminating Co., Inc. v. F.T.C., 849 F.2d 1354, 1366 (11th Cir.1988).

This is not to say that individual knowledge must always be considered to determine whether a trade practice was unfair. The individual consumer’s knowledge may not be a relevant factor where, for example, the legal theory of the claim posits that “consumers do not have a free and informed choice that would have enabled them to avoid the unfair practice.” F.T.C. v. Neovi Inc., 598 F.Supp.2d 1104, 1115 (S.D.Cal.2008) (quotation and citation omitted). This scenario would arise where the claim is based on allegations of “some form of seller behavior that unreasonably creates or takes advantage of an obstacle to the free exercise of consumer decisionmak-ing.” F.T.C. v. Direct Mktg. Concepts, Inc., 569 F.Supp.2d 285, 299-300 (D.Mass.2008) (quotation and citation omitted).

Like the decision to purchase a luxury car, the decision to equip a car with a high-end amenity naturally involves an individual consumer’s consideration of whether and how to mitigate the risk of theft. A jury might well find that a consumer who knew the Headlights were targeted by thieves had avenues available to reasonably avoid the risk. This is particularly true where, as here, the problem of theft was greater in some geographic locations than others. If the consumer lived in a high crime area, he or she could have chosen models with the older style of headlights, taken efforts to park in only safe areas, installed alarm systems extending to the mounting module, or, if these options were not acceptable, decline to purchase or lease a Porsche with the Headlights. Given the theory of this case, the knowledge of some class members that the Headlights were prone to theft cannot be ignored.

When the individual knowledge and experience of the consumer is an important element of the cause of action and its defense, there can be no class-wide proof that injury was not reasonably avoidable. This point is illustrated by In re Motions to Certify Classes Against Court Reporting Firms for Charges Relating to Word Indices, 715 F.Supp.2d 1265, 1277 (S.D.Fla.2010), aff'd sub nom. Webber v. Esquire Deposition Services, LLC, 439 Fed.Appx. 849 (11th Cir.2011).

In Court Reporting, plaintiffs brought FDUTPA and unjust enrichment claims on behalf of a proposed class of consumers of court reporting services. Id. at 1268. The plaintiffs alleged that the defendants — certain firms providing legal transcripts — engaged in unfair acts by charging the same per-page price for index pages as transcribed pages. Id.

The court denied the motion for class certification because the plaintiffs would be unable to establish on a class-wide basis that alleged injury was not “reasonably avoidable”:

Some lawyers and other users of court-reporting services — particularly those who are fairly sophisticated (or, at least, experienced) users of such services— could reasonably avoid the index charges by simply relying on their experience and requesting that the court-reporting firms omit (or charge a different per-page rate for) the indices from any transcripts they order. A class definition that includes experienced and novice users of court-reporting services, necessarily includes those with differing abilities to reasonably avoid the allegedly unfair charge.

Id. at 1277-78. The district court concluded that the class claim failed on the predominance element of class certification under FDUTPA. Id. at 1268.

In the present case, the class representatives similarly are unable to show that the injury was not “reasonably avoidable” on a class-wide basis. The owners who knew and accepted the risk of theft stand in a different legal posture regarding alleged failure to provide notice than owners who did not know. Contrast relatively sophisticated and knowledgeable class members like Alayo-Riera with less knowledgeable and experienced owners like Matos. It would obviously be unfair to class members like Matos to have their claims resolved based upon the facts of class members like Alayo-Riera.

This difference is fatal to the class action. Where the class members present such conflicting factual patterns that could lead to divergent and conflicting legal results, their claims cannot be resolved on a class-wide basis. Instead, to resolve the issue, there would need to be a series of mini-trials to ascertain each absent members’ knowledge of these matters.

IV. The Common Issues will not Predominate as to the Unjust Enrichment Claims.

The unjust enrichment claim also fails to satisfy the requirement that common issues predominate over individual issues. The elements of a claim for unjust enrichment are: (1) plaintiff conferred a benefit o.n the defendant; (2) defendant voluntarily accepts and retains the benefit conferred; and (3) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff. Fito v. Attorneys’ Title Ins. Fund, Inc., 83 So.3d 755, 758 (Fla. 3d DCA 2011).

“A claim for unjust enrichment ... requires examination of the particular circumstances of an individual case as well as the expectations of the parties to determine whether an inequity would result or whether their reasonable expectations were met.” Kunzelmann v. Wells Fargo Bank, N.A., 2013 WL 139913 (S.D.Fla. Jan. 10, 2013) (citations omitted). “In short, common questions will rarely, if ever, predominate an unjust enrichment claim, the resolution of which turns on individualized facts.” Vega v. T-Mobile USA Inc., 564 F.3d 1256, 1274 (11th Cir. 2009).

Here, the determination of unjust enrichment will turn on individual facts. A court would be hard pressed to conclude that Distributor was unjustly enriched when class members with the sophistication and knowledge of Alayo-Riera continued to seek out the Headlights even when they knew of the thefts. The result might well be different for other members of the class. Because the questions raised by the unjust enrichment claim will not necessarily have common answers, that claim also fails the predominance element required for class certification.

Reversed and remanded for proceedings consistent with this opinion.

APPENDIX

Excerpts from Federal Trade Commission Policy Statement on Unfairness:

FTC Policy Statement on Unfairness
Federal Trade Commission Washington, D.C.
December 17,1980
Consumer injury
Unjustified consumer injury is the primary focus of the FTC Act, and the most important of the three [1964 Policy Statement] criteria. By itself it can be sufficient to warrant a finding of unfairness. The Commission’s ability to rely on an independent criterion of consumer injury is consistent with the intent of the statute, which was to “[make] the consumer who may be injured by an unfair trade practice of equal concern before the law with the merchant injured by the unfair methods of a dishonest competitor.”
The independent nature of the consumer injury criterion does not mean that every consumer injury is legally “unfair,” however. To justify a finding of unfairness the injury must satisfy three tests. It must be substantial; it must not be outweighed by any countervailing benefits to consumers or competition that the practice produces; and it must be an injury that consumers themselves could not reasonably have avoided.
First of all, the injury must be substantial. The Commission is not concerned with trivial or merely speculative harms. In most cases a substantial injury involves monetary harm, as when sellers coerce consumers into purchasing unwanted goods or services or when consumers buy defective goods or services on credit but are unable to assert against the creditor claims or defenses arising from the transaction. Unwarranted health and safety risks may also support a finding of unfairness. Emotional impact and other more subjective types of harm, on the other hand, will not ordinarily make a practice unfair. Thus, for example, the Commission will not seek to ban an advertisement merely because it offends the tastes or social beliefs of some viewers, as has been suggested in some of the comments. Second, the injury must not be outweighed by any offsetting consumer or competitive benefits that the sales practice also produces. Most business practices entail a mixture of economic and other costs and benefits for purchasers. A seller’s failure to present complex technical data on his product may lessen a consumer’s ability to choose, for example, but may also reduce the initial price he must pay for the article. The Commission is aware of these tradeoffs and will not find that a practice unfairly injures consumers unless it is injurious in its net effects. The Commission also takes account of the various costs that a remedy would entail. These include not only the costs to the parties directly before the agency, but also the burdens on society in general in the form of increased paperwork, increased regulatory burdens on the flow of information, reduced incentives to innovation and capital formation, and similar matters. Finally, the injury must be one which consumers could not reasonably have avoided. Normally we expect the marketplace to be self-correcting, and we rely on consumer choice — the ability of individual consumers to make their own private purchasing decisions without regulatory intervention — to govern the market. We anticipate that consumers will survey the available alternatives, choose those that are most desirable, and avoid those that are inadequate or unsatisfactory. However, it has long been recognized that certain types of sales techniques may prevent consumers from effectively making their own decisions, and that corrective action may then become necessary. Most of the Commission’s unfairness matters are brought under these circumstances.
They are brought, not -to second-guess the wisdom of particular consumer decisions, but rather to halt some form of seller behavior that unreasonably creates or takes advantage of an obstacle to the free exercise of consumer decision-making.
Sellers may adopt a number of practices that unjustifiably hinder such free market decisions. Some may withhold or fail to generate critical price or performance data, for example, leaving buyers with insufficient information for informed comparisons. Some may engage in overt coercion, as by dismantling a home appliance for “inspection” and refusing to reassemble it until a service contract is signed. And some may exercise undue influence over highly susceptible classes of purchasers, as by promoting fraudulent “cures” to seriously ill cancer patients. Each of these practices undermines an essential precondition to a free and informed consumer transaction, and, in turn, to a well-functioning market. Each of them is therefore properly banned as an unfair practice under the FTC Act.

FTC Policy Statement on Unfairness (Dec. 17, 1980), appended to Int'l Harvester Co., 104 F.T.C. 949, 1070 (1984) (internal references omitted; first alteration added); also available at http://www.ftc.gov/ftc-policy-statement-on-unfairness (last visited on June 4, 2014).

      . This chart compares thefts of all headlights; a comparison of the theft of H.I.D. headlights might be more meaningful,

      . The Complaint also alleges that Distributor could have redesigned the vehicles in various ways, but the allegations and facts establish Distributor does not design or manufacture the vehicles, Porsche does.

      . This opinion does not reach the issue of whether such a theory of damages is viable. Compare Kia Motors Am. Corp. v. Butler, 985 So.2d 1133, 1140 (Fla. 3d DCA 2008); with Dorestin v. Hollywood Imps., Inc., 45 So.3d 819, 825-32 (Fla. 4th DCA 2010) (Gross, J„ concurring specially).

      . The United States Supreme Court recently echoed this sentiment:
      What matters to class certification ... is not the raising of common 'questions'-— even in droves — but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of-the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.

        Wal-Mart Stores, Inc. v. Dukes, - U.S. -, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011) (citation omitted).

      . See Ch. 83-117, 1, at 382, Laws of Fla.; Ch. 2001-39, § 2, at 114, Laws of Fla.; Ch. 2006-196, § 2, at 2072, Laws of Fla.; Ch. 2013-207, § 4, Laws of Fla.


source: Caselaw Access Project

author: ROTHENBERG, J.

license: Public Domain

text:
    Pedro GOICOCHEA, Petitioner, v. Meena LOPEZ, et al., Respondents.
    No. 3D14-873.
    District Court of Appeal of Florida, Third District.
    June 11, 2014.

      Cooney Trybus Kwavnick Peets, and Warren Kwavnick, Fort Lauderdale, for petitioner.
    SteinLaw, P.A., and Brandon E. Stein; Law Office of Timothy Harrington, and Ryan Charles Penta, Miami; Cole Scott & Kissane, P.A., and Michael Elias Brand; Robert D. Phillips; Clark, Robb, Mason, Coulombe <& Bushman, and Mark S. Muschman; Green, Murphy & Murphy, P.A., and John J. Murphy, Fort Lauder-dale, for respondents.
    Before ROTHENBERG, SALTER, and FERNANDEZ, JJ.
   ROTHENBERG, J.

Pedro Goicochea (“Goicochea”) seeks certiorari review of the trial court’s non-final order that “sustained” Meena Lopez’s (“Plaintiff’) motion for a protective order and limited Goicochea and the other co-defendants to a single independent medical examination (“IME”) “per [medical] specialty.” We grant the petition for writ of certiorari and quash the order under review.

The Plaintiff sued several defendants, including Goicochea, for alleged injuries she sustained during three separate and unrelated automobile accidents that occurred in July 2007, November 2007, and January 2009. The Plaintiff alleged in her complaint that her injuries from these three accidents are “indivisible and superimposed upon one another and the Plaintiff is unable to apportion her damages between them.” Goicochea denied these allegations.

Goicochea, who was one of the drivers involved in the November 2007 accident, requested that the Plaintiff submit to an orthopedic IME by Dr. Phillip Lozman pursuant to Florida Rule of Civil Procedure 1.360(a)(1)(A). Thereafter, two of the defendants that were sued for the July 2007 accident — Maria Machado and Luis Delgado — filed a request for the Plaintiff to submit to an orthopedic IME by Dr. Rolando Garcia under the same provision.

In response to the requests for IMEs, the Plaintiff filed a motion for a protective order, seeking to limit all defendants to one orthopedic IME under rule 1.360. In support of her position, the Plaintiff cited Royal Caribbean Cruises, Ltd. v. Cox, 974 So.2d 462, 465 (Fla. 3d DCA 2008), which held: “[W]hen a defendant requests a subsequent IME, the defendant should make a stronger showing of necessity before the request is authorized.” The trial court ruled that the motion is “sustained as to one (1) IME per [medical] specialty.” Goi-cochea’s petition for writ of certiorari followed.

Goicochea argues that the trial court departed from the essential requirements of law by limiting all defendants to a single IME per specialty, and that this departure will subject him to irreparable harm that cannot be remedied on appeal. We agree.

The Plaintiffs reliance on Cox when seeking to limit the defendants’ collective IMEs to one per specialty was misplaced, as Cox is clearly distinguishable from the instant case. In Cox, the same defendant, Royal Caribbean Cruises, Ltd. (“RCCL”), sought to subject Cox to a second IME by its orthopedic expert, Dr. Wilkerson, after Cox underwent a second surgery on his left shoulder. In response, Cox argued that rule 1.360 does not allow multiple examination for the same injury. The trial court denied RCCL’s request for the second orthopedic IME, and, thereafter, RCCL petitioned this Court for a writ of certiorari. This Court granted the petition and stated:

In a negligence action where a plaintiff asserts that he or she has sustained mental or physical injuries, the defendant’s good cause for conducting the initial IME is normally shown without any further inquiry. However, when a defendant requests a subsequent IME, the defendant should make a stronger showing of necessity before that request is authorized.

Cox, 974 So.2d at 465 (citation omitted). This Court ultimately concluded that “because Cox’s physical condition underwent a substantial change after Dr. Wilkerson’s first IME, RCCL has proven good cause for requesting and conducting another IME.”

Unlike Cox, the same defendant has not requested that the Plaintiff submit to a second orthopedic IME. Rather, entirely separate codefendants, who are adverse to each other based on the allegations set forth in the Plaintiffs complaint, have requested that the Plaintiff submit to their own orthopedic IME under rule 1.860. As stated earlier, the Plaintiff sued several defendants for injuries she allegedly sustained during three separate and unrelated automobile accidents, alleging that her injuries are “indivisible” and she “is unable to apportion her damages between” the numerous defendants. Based on these allegations, the Plaintiff has pitted codefen-dant against codefendant, with each code-fendant attempting to establish that the Plaintiffs alleged injuries are not a result of their specific negligence, but are instead attributable to at least one of the other two automobile accidents. Therefore, because the defendants in this case are adverse to each other, the trial court departed from the essential requirements of law by limiting all defendants to a single shared “IME per specialty,” thereby failing to afford Goicochea and the other defendants the benefit of rule 1.360(a)(1)(A). Further, the trial court’s departure will subject Goico-chea to irreparable harm that cannot be remedied on appeal. Cox, 974 So.2d at 465-68. Accordingly, we grant the petition for writ of certiorari and quash the order under review.

Petition granted; order quashed.

      . Florida Rule of Civil Procedure 1.360 provides in relevant part as follows:
      Rule 1.360. Examination of Persons (a) Request; Scope.
      (1) A party may request any other party to submit to, or to produce a person in that other party's custody or legal control for, examination by a qualified expert when the condition that is the subject of the requested examination is in controversy.
      (A) When the physical condition of a party or other person under subdivision (a)(1) is in controversy, the request may be served on the plaintiff without leave of court after commencement of the action ....


author: PER CURIAM.

text:
    Thomas HENDRICKS and Stdweh Partners, L.P., Appellants, v. BAYSIDE AT SANDESTIN CONDOMINIUM ASSOCIATION, INC. and Sandestin Investments, LLC, Appellees. Bayside at Sandestin Condominium Association, Inc., Cross Appellant, v. Intrawest Sandestin Company, LLC, Cross Appellee.
    No. 1D13-1819.
    District Court of Appeal of Florida, First District.
    June 11, 2014.
    Cynthia S. Tunnicliff of Pennington, P.A., Tallahassee; Peter M. Dunbar and Ashley E. Gault of Dean, Mead, Egerton, Bloodworth, Capouano & Bozarth, P.A., Tallahassee, for Appellants.
    John Cottle of Becker & Poliakoff, P.A., Fort Walton, for Appellee/Cross-Appellant Bayside at Sandestin Condominium Association, Inc.; Stanley A. Bunner, Jr., Rebecca Marie Vaecariello, and Lauren S. Josephson, of Salvatori, Wood, Buckel, Carmichael & Lottes, Naples, for Appellee Sandestin Investments, LLC.
    Paul R. Regensdorf, Fred J. Lotterhos, III, and Sarah Toppi of Holland and Knight, LLP, Jacksonville, for Cross Ap-pellee Intrawest Sandestin Company, LLC.
   PER CURIAM.

AFFIRMED as to the appeal and DISMISSED as to the cross-appeal.

WOLF, PADOVANO, and RAY, JJ„ concur.


text:
    Michael Angelo GALAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-1258.
    District Court of Appeal of Florida, Fifth District.
    June 17, 2014.
    James S. Purdy, Public Defender, and John M. Selden, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Henry v. State, 82 So.3d 1084 (Fla. 5th DCA 2012), rev. granted, 107 So.3d 405 (Fla.2012).

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


text:
    Edgard Carrion NAVEDO, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-2841.
    District Court of Appeal of Florida, Fifth District.
    June 17, 2014.
    Anthony Suarez, of The Suarez Law Group, P.A., Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie Nielan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Fla. R. App. P. 9.315(a). See also Smith v. State, 81 So.3d 590 (Fla. 5th DCA 2012).

PALMER, ORFINGER, and LAWSON, J.J., concur.


text:
    Michael Garfield TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-3249.
    District Court of Appeal of Florida, Fifth District.
    June 17, 2014.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. K.W. v. State, 983 So.2d 713 (Fla. 2d DCA 2008).

TORPY, C.J., PALMER and WALLIS, JJ., concur.


author: WOLF, J.

text:
    Rodger HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1644.
    District Court of Appeal of Florida, First District.
    June 18, 2014.

      Melissa J. Ford, Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant challenges his convictions for armed robbery with a firearm and aggravated assault with a firearm. He argues the trial court erred in not permitting a defense witness who was incarcerated to appear at trial in civilian clothing. We agree and find that the error was harmful in this case. Thus, we reverse and remand for a new trial.

At trial, the State presented evidence that two men robbed the victim in the front yard of the home of Pharory Greene. The victim identified appellant as one of the two perpetrators. The jury was not told whether the second man was ever identified or apprehended. Greene testified as a witness for the defense. Just prior to Greene’s testimony, appellant’s counsel brought to the court’s attention that Greene was serving a jail sentence. Counsel stated that days earlier she provided civilian clothes for Greene to the jail, but she had been informed by the bailiff that Greene was not dressed. Counsel noted that the State would not be permitted to bring out on cross-examination the fact that Greene was incarcerated at the time of trial, but if Greene were forced to testify while wearing jail clothes, the jury would be alerted to that fact. The court stated, “[w]e don’t dress out witnesses” who are incarcerated, regardless of whether they are witnesses for the State or the defense.

Counsel then expressed concern that the jury might think Greene was a codefen-dant in this case, which he was not. She sought to ask Greene if he had been arrested in connection with this case. However, the court ruled that question would open the door for the State to question Greene about the details of his entire criminal history. Greene subsequently testified, while wearing jail clothes, that he knew appellant, that he witnessed the robbery, and that appellant was not one of the robbers. The jury was never informed that Greene was not a codefendant.

It is well-established that “[a] criminal defendant cannot be compelled to stand trial in prison clothing, because it could impair the defendant’s presumption of innocence, which is a basic component of the fundamental right to a fair trial.” Mullins v. State, 766 So.2d 1136, 1137 (Fla. 2d DCA 2000) (citations omitted). “In addition, equal protection concerns are triggered because ‘compelling the accused to stand trial in jail garb operates usually against only those who cannot post bail prior to trial.’ ” Id. (quoting Estelle v. Williams, 425 U.S. 501, 505, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976)).

Only one Florida court has considered the issue of whether it is error to compel a defense witness to appear in prison or jail clothing. In Mullins, 766 So.2d at 1137, the Second District found that “[ajlthough witnesses are not clothed with the presumption of innocence, we conclude that it was error here not to permit the defense witness to change clothes.” However, the Mullins court found the error was harmless in that case. Id.

Courts in other jurisdictions have also found it is error to compel a defense witness to appear in jail or prison clothing after a proper defense objection is made. The Nevada Supreme Court held that although defense witnesses do not enjoy a presumption of innocence, “the practice of requiring an incarcerated witness to appear at trial in jail garb may nonetheless prejudice a defendant affecting his constitutional right to a fair trial.” Hightower v. State, 123 Nev. 55, 154 P.3d 639, 641-42 (2007). The court reasoned the jail garb may “undermine!] the witness’ credibility,” or the jury may believe the defendant is “guilty by association” with the incarcerated witness. Id. at 641. The court also noted that the “overwhelming majority of jurisdictions hold that an incarcerated witness should not be compelled to testify in prison clothing.” Id. (citing State v. Yates, 174 Conn. 16, 381 A.2d 536, 537 (1977) (finding the “logical extension” of the principle that a defendant may not be forced to testify in prison clothing “applies to incarcerated witnesses who are required to testify while dressed in prison attire,” but finding the error harmless in that case); State v. Artwell, 177 N.J. 526, 832 A.2d 295, 303 (2003) (holding a “trial court may not require a defendant’s witness to appear at trial in prison garb” because “requiring a witness to testify in prison clothing ‘furthers] no vital State interest’ ” and “only prejudices a defendant both by undermining his or her witness’s credibility and suggesting a defendant’s guilt by association”) (citations omitted); State v. Allah Jamaal W., 209 W.Va. 1, 543 S.E.2d 282 (2000) (finding a trial court erred in compelling three defense witnesses to testify while wearing prison clothing and shackles); and ABA Standards for Criminal Justice: Discovery and Trial by Jury, Standard 15-3.2(b) (3d ed. 1996) (recommending that a defense witness should not appear at trial in prison clothing if the defendant objects)).

We agree with the majority of jurisdictions and find that as a general rule, it is error for the trial court to compel a defense witness to appear in jail or prison clothing if the defendant objects. Appellant is correct that the State would not have been permitted to elicit testimony from Greene that he was currently incarcerated. Therefore, it was error to require Greene to wear jail clothes that testified to that fact. See § 90.610, Fla. Stat.; Mosley v. State, 91 So.3d 928, 930 (Fla. 1st DCA 2012) (noting section 90.610 limits the impeachment of a witness based on her criminal record to asking how many of certain convictions she has, and if she answers falsely, the introduction of certified copies of those convictions).

In so holding, we note that there may be circumstances, such as safety concerns, that prompt a trial court in its discretion to require a witness to wear jail clothes or shackles. See Smith v. State, 7 So.3d 473, 492 (Fla.2009). Here, there were no safety concerns expressed by the court or counsel. Instead, the court refused appellant’s request for Greene to wear civilian clothing for the sole reason that it was not the common practice of the court to permit incarcerated witnesses to change clothes. The court’s ruling was error.

Further, we find the error was not harmless here. Counsel was correct that when Greene testified wearing jail clothing, it would have been reasonable for the jury to assume that Greene was the code-fendant, and thus had motive to lie about who committed the robbery. The jurors had heard evidence that two men committed the robbery in Greene’s front yard, but they were not told if the second man was ever identified or apprehended. Counsel sought to mitigate this prejudice by eliciting testimony from Greene that he was not arrested in connection with this case; however, the court found that question would open the door to Greene’s entire criminal history. Further, Greene’s testimony that he saw the robbers and that appellant was not one of them was clearly important to appellant’s defense. In light of the foregoing, we cannot say “beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). Therefore, the error was not harmless. As such, we REVERSE and REMAND for a new trial.

PADOVANO and RAY, JJ„ concur.


author: LEVINE, J.

text:
    Darlene A. YOUNG, Appellant, v. Leslie Couture LEVY and Wear It’s At, LLC, Appellees.
    No. 4D13-1966.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2014.

      Paul K. Silverberg and Kraig S. Weiss of Silverberg & Weiss, P.A., Weston, for appellant Darlene A. Young.
    Leif J. Grazi of Grazi & Gianino, LLP, Stuart, for appellee Leslie Couture Levy.
   LEVINE, J.

The issue presented is whether the trial court erred in entering a writ of garnishment upon appellant’s interest in a limited liability company. We find the garnishment was in violation of section 608.433(5) and therefore reverse.

Appellant Darlene A. Young and appel-lee Leslie Couture Levy were co-owners of Wear It’s At, LLC (“the company”), with Levy owning 51% and Young owning 49%. As a result of alleged differences in management style, Levy terminated Young from the business, and denied Young access to the business premises and the business bank accounts.

Subsequently, Young sued Levy seeking an accounting, as well as injunctive relief and damages. The trial court, over Levy’s objection, granted Young’s request for an emergency preliminary injunction placing Young as a managing member with day-today control of the company, as well as immediate access and control of the financial affairs of the company. Further, the trial court set a bond at $5,000.

Levy moved to dissolve the injunction or, alternatively, increase the bond amount. The trial court vacated the emergency preliminary injunction, and this court affirmed. Young v. Levy, 63 So.3d 777 (Fla. 4th DCA 2011).

Levy next moved for attorneys’ fees, as well as having the bond disbursed to her. After several hearings, the trial court awarded Levy $41,409.45 in attorneys’ fees and the full $5,000 bond. Young appealed the attorneys’ fee award, and this court affirmed. Young v. Levy, 123 So.3d 579 (Fla. 4th DCA 2013).

Finally, Levy moved for a writ of garnishment for the attorneys’ fees judgment. The company, Wear It’s At, as garnishee, stated that it held $44,100 in its possession that was indebted to Young. Young filed a sworn claim of exemption from the garnishment, and Levy filed verified objections claiming that the notice of garnishment was properly provided.

The trial court entered an order denying Young’s claims of exemption, and issued a writ of garnishment ordering the company to disburse the garnished monies to Levy up to the sum needed to satisfy the judgment, with any excess monies going to Young. The trial court then denied Young’s motion to dissolve the writ. Young appeals the decision of the trial court to order the disbursement of monies to Levy through a writ of garnishment.

“On appeal, this court reviews a trial court’s application of a statute de novo and any of the trial court’s findings of fact under the competent substantial evidence standard of review.” Chackal v. Staples, 991 So.2d 949, 953 (Fla. 4th DCA 2008).

Young asserts that the trial court erred in allowing Levy to satisfy her attorneys’ fees judgment by obtaining a writ of garnishment against Young’s distributions from the company. Young asserts the plain language of section 608.433(5), Florida Statutes (2011), prohibits garnishment as a remedy in this case.

Section 608.433(5) provides:

Except as provided in subsections (6) and (7), a charging order is the sole and exclusive remedy by which a judgment creditor of a member or member’s as-signee may satisfy a judgment from the judgment debtor’s interest in a limited liability company or rights to distributions from the limited liability company.

“A charging order constitutes a lien on the judgment debtor’s limited liability company interest or assignee rights.” § 608.433(4)(b), Fla. Stat. (2011). Under a charging order, a judgment creditor has the right “to receive any distribution or distributions to which the judgment debtor would otherwise have been entitled from the limited liability company, to the extent of the judgment, including interest.” Id.

Levy first argues this court should affirm based on Young’s failure to provide a transcript of the hearing on Levy’s request for the garnishment. However, “[a] judgment which is fundamentally erroneous on its face may be appealed despite the lack of a transcript.” Fla. Pub. Serv. Comm’n v. Pruitt, Humphress, Powers & Munroe Adver. Agency, Inc., 587 So.2d 561, 563 (Fla. 1st DCA 1991). Because Young does not appeal an issue of fact, but rather whether the trial court erred in finding the garnishment statute applicable to enforce the judgment, the lack of a transcript does not hinder this court’s review. See id.

Levy next argues that the distributions were “profits” or “dividends” subject to a writ of garnishment, and thus exempt from section 608.433(5). However, chapter 608 defines “interest” as “a member’s share of the profits and the losses of the limited liability company, the right to receive distributions of the limited liability company’s assets ....”§ 608.402(23), Fla. Stat. (2011) (emphasis added). Thus, even accepting Levy’s assertion that the distributions were “profits,” they were subject to section 608.433(5) because they represented Young’s interest in the limited liability company.

We find that the trial court did err in allowing Levy to utilize garnishment against Young’s distributions from the company. Because the company was a limited liability company, utilizing garnishment as a remedy to satisfy Levy’s judgment violated the plain language of section 608.433(5). Section 608.433(5) provides that “a charging order is the sole and exclusive remedy by which a judgment creditor of a member ... may satisfy a judgment from the judgment debtor’s interest in a limited liability company or rights to distributions.” (emphasis added).

“When a statute is clear, this Court need not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” Williams v. State, 121 So.3d 524, 530 (Fla.2013). “The plain and ordinary meaning of the words of a statute must control.” Id.

Under the plain language of this statute, only a charging order can be utilized to satisfy a judgment from a member’s interest in or distributions of a limited liability company. Accordingly, we reverse and remand for dissolution of the writ of garnishment.

Reversed and remanded.

MAY and CIKLIN, JJ., concur.


author: OSTERHAUS, J.

text:
    PANAMA CITY-BAY COUNTY AIRPORT AND INDUSTRIAL DISTRICT, Appellant/Cross-Appellee, v. KELLOGG BROWN & ROOT SERVICES, INC., Appellee/Cross-Appellant.
    No. 1D12-4874.
    District Court of Appeal of Florida, First District.
    June 18, 2014.

      W. Robert Vezina, III, Bradley S. Co-penhaver, and Megan S. Reynolds of Vezi-na, Lawrence, & Piseitelli, Tallahassee for Appellant.
    David L. Mcgee of Beggs & Lane, and Louis K. Rosenbloum, Pensacola for Ap-pellee.
   ON APPELLEE/CROSS-APPELLANT’S MOTION FOR REHEARING AND CERTIFICATION

OSTERHAUS, J.

This case arises from the construction of the new airport that opened in Panama City in 2010. After the airport was in operation, a stormwater retention pond had to be reconstructed at a cost of millions of additional dollars because improper-sized sand was installed in the pond. Legal claims multiplied between those with a hand in the project — the airport district, its construction management contractor, the pond’s designer, and the construction company — involving the pond and other drainage, grassing, and sodding work. And though much was settled short of trial, the Panama City-Bay County Airport and Industrial District (“Airport”) and construction management contractor Kellogg Brown • & Root Services, Inc. (“KBR”), ultimately went to trial. KBR prevailed after assailing the Airport’s witnesses and case at trial on the basis of a settlement agreement the Airport had entered with the construction company. The Airport objected below to having its settlement agreement made known to the jury and now makes a convincing argument on appeal for reversal, remand, and a new trial because the agreement should not have been disclosed.

I.

In 2007, the Airport entered into contracts for the design, oversight, and construction of the Northwest Florida Beaches International Airport in Panama City. The Airport hired Atkins North America, Inc. (“Atkins”) to design plans and specifications for construction of the “horizontal” works of the airport (site preparation, drainage, and paving); contracted with Appellee KBR to perform construction and program management and oversight services; and awarded the prime construction contract to Phoenix Construction Services, Inc. (“Phoenix”).

This appeal mainly involves the construction of a retention pond at the airport site. Plans called for the construction of “Pond C,” an approximately 50-acre stormwater pond that collected and treated water draining from over 1000 acres of the airport site. The pond’s ability to drain water, its permeability, was a critical performance metric dictated by longstanding Florida Department of Environmental Protection (“DEP”) regulations. DEP required that sands installed in the pond be certified as meeting a minimum grain size. But in the course of construction, noncompliant, small-sized sand was installed in the pond. For this reason, the pond had to be reconstructed at an additional cost of over $5.5 million.

Claims and recriminations abounded regarding Pond C and other work at the site. Phoenix sued the Airport for breach of contract and Atkins for professional negligence. The Airport, seeking to recover the additional $5.5 million from Phoenix, Atkins, and/or KBR, asserted counterclaims for breach of contract, bond, and indemnity against Phoenix; crossclaims for professional negligence, breach of contract, and indemnity against Atkins; and third-party indemnity, contract, and negligence claims against KBR. In turn, KBR brought third-party counterclaims for indemnity and breach of contract against the Airport.

As the litigation progressed, the parties resolved a great deal short of trial. In January 2012, the Airport and Phoenix entered a settlement agreement fully releasing one another. Among other things, the Airport admitted liability and liquidated its damages to Phoenix in return for a share of any recovery from the continuing litigation. They also agreed to cooperate in the remaining litigation using a common law firm compensated by Phoenix in addition to the Airport’s own counsel. But they clarified that each was to retain ownership and control of its own claims and could settle its claims independently. In fact, after the Airport and Phoenix settled, each also settled their claims with Atkins.

The only claims remaining by the time of trial were the Airport’s third-party breach of contract and professional negligence claims against KBR; and KBR’s third-party counterclaim for breach of contract and indemnity arising from unpaid invoices. Before trial, the Airport filed a motion in limine to exclude evidence of Phoenix’s settlement offer and of the Airport-Phoenix settlement agreement itself. The trial court granted the motion as to the terms of the settlement offer, but allowed the settlement agreement to be disclosed to the jury. KBR made the settlement agreement known to the jury and referred to it repeatedly to discredit the Airport’s case and to bolster its own counterclaims. The views KBR expressed at trial were that the settlement agreement showed the Airport’s case to be “not about the pursuit of truth [but] of money,” and amounted to Phoenix “invest[ing] in a lawsuit.”

The jury returned verdicts for KBR, both rejecting the Airport’s breach of contract and negligence claims and ruling for KBR on its counterclaim and assessing damages at more than $360,000, the amount of the unpaid invoices. The Airport moved for a new trial citing the improper disclosure of its settlement agreement (among other things); but its motion was denied. It then timely appealed, but did not appeal the judgment on KBR’s crossclaims. KBR also cross-appealed.

II.

A.

As a threshold matter, we must address the mootness issue that KBR has raised which implicates this court’s jurisdiction. KBR argues that the Airport’s appeal is moot because it has failed to appeal the judgment on KBR’s counterclaim. The essence of KBR’s argument is that the jury defacto decided the Airport’s direct claims by rejecting similar-sounding affirmative defenses that the Airport raised in defense of KBR’s counterclaim.

It is true that “[a]n issue is moot when the controversy has been so fully resolved that a judicial determination can have no actual effect.” Carlin v. State, 939 So.2d 245, 247 (Fla. 1st DCA 2006). But, here, we find little merit to KBR’s mootness argument because the jury’s consideration involved only whether the Airport’s affirmative defenses barred KBR from recovering on particular invoices. This disposition did not, however, implicate the merits of the Airport’s much broader breach of contract and negligence claims. In fact, the trial court specifically instructed the jury to separately consider the Airport’s claims from KBR’s counterclaim. And so, the jury’s ruling that certain invoices should be paid, did not preclude the Airport from prevailing on its separate claims.

B.

The Airport’s main argument is that the trial court committed reversible error by allowing KBR to disclose its settlement agreement with Phoenix to the jury, which it then used to discredit the Airport’s case.

A trial court’s decision to admit or exclude evidence is reviewed for abuse of discretion. Hendricks v. State, 34 So.3d 819, 822 (Fla. 1st DCA 2010). Its discretion, however, “is limited by the evidence code and the applicable case law, and its interpretation of those authorities is subject to de novo review.” Id. Where a settlement agreement is involved, the law is particularly clear: “The fact that a written release or covenant not to sue exists or the fact that any person has been dismissed because of such release or covenant not to sue shall not be made known to the jury.” § 46.015(3), Fla. Stat. (2012) (emphasis added); see also id. § 768.041(3) (applying the same prohibition to tort claims). Moreover, this Court has characterized the law in this area in absolute terms: “The unambiguous language of the statute admits no exceptions, and violation of the prohibition is reversible error.” Holmes v. Area Glass, Inc., 117 So.3d 492, 494 (Fla. 1st DCA 2013) (citing Saleeby v. Rocky Elson Constr., Inc., 3 So.3d 1078, 1080 (Fla.2009)). We emphasized:

Even a reference to settlement by counsel during voir dire or arguments necessitates a new trial. In other words, disclosure of the fact of settlement or dismissal is prohibited regardless of whether it is presented to the jury through evidence or through some other means.

Id. at 494-95 (citations omitted); see also Saleeby, 3 So.3d at 1085; Morgan v. Decker, 23 So.3d 201 (Fla. 1st DCA 2009).

In this case, KBR argues that the unambiguous law doesn’t apply because the Airport-Phoenix settlement agreement constitutes a “Mary Carter-style” agreement. In Dosdourian v. Carsten, the Florida Supreme Court permitted disclosure of a Mary Carter-style settlement agreement — one in which a party plaintiff and party defendant agreed to work together secretly at trial to the detriment of a nonsettling defendant (see Booth v. Mary Carter Paint Co., 202 So.2d 8, 11 (Fla. 2d DCA 1967)) — because it viewed such agreements as antithetical to the trial process. 624 So.2d 241, 244 (Fla.1993). It viewed these sorts of agreements as fostering “misrepresentations to the court and to the jury in order to maintain the charade of an adversarial relationship.” Id. To eliminate their “sinister influence” and the “sham of adversity” they presented, the court outlawed the use of “any agreement which requires the settling defendant to remain in the litigation, regardless of whether there is a specified financial incentive to do so.” Id. at 246.

Here, KBR claims that this ease too involves a prohibited Mary Carter-style agreement which was rightly disclosed to the jury. The trial court considered the issue below and found that the Airport-Phoenix settlement agreement did not constitute a Mary Carter-style agreement. And we agree with this conclusion. Unlike the agreement in Dosdourian, and real Mary Carter agreements, Phoenix did not agree to remain a party to the trial below; and it did not so remain. Because Phoenix wasn’t a party, the trial in this case did not present to the jury the sort of “charade” or “sham of adversity” that alarmed the court in Dosdourian. Rather, the only parties to the trial in this case — the Airport and KBR — were truly adverse.

Even though the trial court did not find the Airport-Phoenix settlement agreement to constitute a Mary Carter agreement, it nonetheless permitted its disclosure to the jury. What concerned the trial court were the agreement’s cooperation provisions and Phoenix’s potential to recover if the Airport’s case succeeded, which the court considered impediments to the jury’s ability to assess the credibility of the Airport’s witnesses. The Florida Supreme Court faced this same basic scenario in Saleeby. In Saleeby, the plaintiff settled with one of the defendants with a financial stake in the case, whose president subsequently testified in support of the plaintiffs case at trial and whose prior-defendant status conveyed “an obvious [and] intense motivation ... to give testimony that was unfavorable to [the defendant].” 3 So.3d at 1087 (Canady, J. dissenting). As in this case, the remaining defendant in the case cited Dosdourian and argued that the settlement agreement should be admitted to impeach the witness and demonstrate bias. But the Supreme Court disagreed, stating:

[T]he plain language of sections 768.041(3) and 90.408 expressly prohibits the admission at trial of evidence of settlement and that a defendant has been dismissed from the suit. These statutes do not contain an implicit exception permitting such evidence to be used for impeachment purposes, and the district court erroneously relied on our opinion in Dosdourian in finding one.

Id. at 1086. See also Holmes, 117 So.3d at 494-95; Morgan, 23 So.3d 201.

Guided by Saleeby, we likewise cannot construe Dosdourian as validating the settlement agreement’s disclosure in this case. Florida law has simply removed discretion from trial courts to permit the disclosure of settlement agreements under the circumstances presented here. Because the trial court improperly allowed the Airport-Phoenix settlement agreement to be made known to the jury, a new trial is warranted.

C.

Finally, KBR’s cross-appeal argues that the Airport’s complaint must be dismissed altogether because the Airports Phoenix settlement agreement violated the anti-assignment clause in KBR’s contract with the Airport. Specifically, KBR argues that the Airport improperly assigned the KBR-Airport contract by relinquishing control of its legal claims and part of the potential recovery to Phoenix. But, like the trial court, we think the very terms of the Airport and Phoenix’s settlement belie KBR’s assignment argument. The Airport’s agreement with Phoenix states clearly that: “The [Airport] does not intend by the Agreement to assign any right, claim or interest to Phoenix in [Airport’s] Third Party Claims or under the [Airport’s contract] with ... KBR.” Furthermore, as the trial court noted below, the Airport remains free to settle any of its claims independently and without Phoenix’s approval. We thus affirm the trial court’s summary judgment order on the assignment issue.

III.

For the foregoing reasons, the final judgment is vacated, the trial court’s order denying the Airport’s motion for new trial is reversed, and this cause is remanded for a new trial. We affirm, however, the trial court’s summary judgment order on the assignment issue raised by the cross-appeal.

AFFIRMED in part; REVERSED in part; and REMANDED for a new trial.

ROBERTS and WETHERELL, JJ., concur.

      . Because a new trial is necessary, we need not address the Airport’s other claim that the trial court improperly excluded a key witness from the previous trial.


text:
    Jeffrey Robert HASTINGS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2344.
    District Court of Appeal of Florida, First District.
    June 18, 2014.
    Jeffrey R. Hastings, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

VAN NORTWICK, PADOVANO, and MARSTILLER, JJ., concur.


text:
    Caesar MARTINEZ, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2515.
    District Court of Appeal of Florida, First District.
    June 18, 2014.
    Caesar Martinez, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

VAN NORTWICK, PADOVANO, and MARSTILLER, JJ., concur.


text:
    Artavious V. COTTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1920.
    District Court of Appeal of Florida, First District.
    June 19, 2014.
    Artavious V. Cotton, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is dismissed as untimely. See Fla. R. App. P. 9.141(c)(5).

THOMAS, ROBERTS, and MAKAR, JJ., concur.


author: WALLIS, J.

text:
    Margaret RANDALL, Individually, etc., Appellant, v. WALT DISNEY WORLD CO., etc., et al., Appellees.
    No. 5D12-4353.
    District Court of Appeal of Florida, Fifth District.
    June 20, 2014.

      Melissa Visconti and Janpaul Portal of The Ferraro Law Firm, Miami, for Appellant.
    Douglas H. Stein, Stephanie Martinez and John Ward Smith of Seipp, Flick & Hosley, LLP, Miami, for Appellees.
   WALLIS, J.

Margaret Randall (“Appellant”) appeals the trial court’s orders that: (1) dismissed her late husband, Barry Randall’s (“Randall”) personal injury action against Walt Disney World Co. and Walt Disney Imagineering Research & Development, Inc. (“Appellees”); and (2) dismissed with prejudice Appellant’s loss-of-consortium claim. In this appeal, we address only whether a surviving spouse’s loss-of-consortium claim can survive the death of the deceased spouse. Although we have previously addressed this issue in Taylor v. Orlando Clinic, we write to clarify this court’s precedent.

In 2006, Randall and Appellant visited Appellees’ theme park and rode a roller coaster, which allegedly caused injuries to Randall’s neck and head. In 2008, Randall and Appellant jointly filed a personal injury action with a loss-of-consortium claim against Appellees. In 2010, during the pendency of the personal injury action, Randall died. The parties dispute the cause of his death, as a result of either injuries sustained on the roller coaster or an unrelated cause. In 2011, Appellant filed a suggestion of death, but she failed to move under Florida Rule of Civil Procedure 1.260 to substitute herself as personal representative within 90 days after filing the suggestion of death to maintain Randall’s personal injury action. The trial court then dismissed the personal injury action and the loss-of-consortium claim. Appellant filed a motion for rehearing, raising the loss-of-consortium issue, which the trial court denied.

We review a denial of a motion for rehearing under an abuse of discretion standard. Karimi v. Karimi, 867 So.2d 471, 473 (Fla. 5th DCA 2004). However, where the motion for rehearing addresses only issues of law, “the standard of review is essentially de novo.” Mistretta v. Mistretta, 31 So.3d 206, 208 (Fla. 1st DCA 2010) (quoting State Farm Mut. Auto. Ins. Co. v. Williams, 943 So.2d 997, 999-1000 (Fla. 1st DCA 2006)).

This court has previously held that “[t]he wife’s cause of action for loss-of-consortium, while derived from the personal injury to the husband, survives the death of her husband-patient, whose own personal injury action did not survive his death.” Taylor, 555 So.2d at 878. The third district certified conflict with Taylor and held that a cause of action for loss-of-consortium does not survive the death of the injured spouse. ACandS, Inc. v. Redd, 703 So.2d 492, 494 (Fla. 3d DCA 1997). Very recently, the Florida Supreme Court disapproved Taylor to the extent it was inconsistent with Capone. See Capone, 116 So.3d at 378.

We first address the supreme court’s recent holding in Capone and its impact on Taylor. In Capone, the supreme court addressed whether, after a party plaintiffs death, a personal injury action can be amended to add a wrongful death claim and substitute the personal representative of the estate as the party. Id. at 373. The supreme court held that Florida’s Wrongful Death Act, section 768.19, Florida Statutes (2008), did not require dismissal of a pending personal injury action. Id. at 377. Instead, the act required the pending case to be suspended until the estate’s personal representative was added as a party and given the opportunity to amend the complaint. Id. In Capone, the supreme court then provided only that it “disapprove^] ... Taylor ... to the extent it is inconsistent with this opinion.” Id. at 378. In Taylor, this court: (1) affirmed the order dismissing the deceased husband’s abated personal injury negligence action; and (2) reversed the order dismissing both the wife’s loss-of-consortium claim and separately filed wrongful death action. 555 So.2d at 878. Capone ⅛ holding that the act did not require dismissal only disapproves our treatment in Taylor of the order dismissing a personal injury action. Importantly, the supreme court neither addressed whether a loss-of-consortium claim survives death nor mentioned the conflict between this court and the third district. Accordingly, Capone disapproved Taylor on grounds unrelated to whether the wife’s loss-of-consortium claim survives the death of the personal injury husband. Thus, our holding in Taylor is still precedent.

We turn our attention to the third district’s conflict and reaffirm our holding in Taylor. In ACandS, Inc. v. Redd, 703 So.2d 492, 494 (Fla. 3d DCA 1997), the third district held that a cause of action for a loss of consortium does not survive the death of the injured spouse. In doing so, it provided:

By the term “separate and distinct,” these courts do not mean that a derivative cause of action can exist in the absence of a primary cause of action. Instead, the term “separate and distinct” means that a spouse can maintain a consortium claim in situations where there has not been joinder of the injured spouse, Busby v. Winn & Lovett Miami, Inc., 80 So.2d 675, 676 (Fla.1955), or where the injured spouse has executed a consent judgment or a release as to his or her claim. Ryter v. Brennan, 291 So.2d 55 (Fla. 1st DCA 1974); Resmondo v. Int’l Builders of Fla., Inc., 265 So.2d 72, 73 (Fla. 1st DCA 1972). Accordingly, we decline to follow Taylor and certify conflict with the Fifth District.

Id.

We disagree with the third district’s analysis to the extent that it suggests Res-mondo, Ryter, and Busby do not support a derivative cause of action’s existence in the absence of a primary cause of action. In Gates v. Foley, 247 So.2d 40, 41 (Fla.1971), the supreme court abrogated prior decisions and held that “deprivation to the wife of the husband’s companionship, affection and sexual relation (or consortium, as above defined) constitutes a real injury to the marital relationship and one which should be compensable at law if due to the negligence of another.” In Resmondo, the first district held that where a husband settled a claim with a consent judgment without finding fault, a wife’s loss-of-consortium claim is still actionable. 265 So.2d at 73. In Ryter, the first district provided that “[t]he wife owns the cause of action [and that] [i]t is her property right in her own name.” 291 So.2d at 57. Similarly, this court has previously stated that “Florida case law recognizes that loss-of-consortium is a separate cause of action belonging to the spouse of the injured married partner, and though derivative in the sense of being occasioned by injury to the spouse, it is a direct injury to the spouse who has lost the consortium.” Orange Cnty. v. Piper, 523 So.2d 196, 198 (Fla. 5th DCA 1988) (citing Busby, 80 So.2d at 676).

As another basis for its conflict with Taylor, the third district continued by noting it was persuaded that the Legislature did not want the loss-of-eonsortium claim to continue past death because the Legislature made recovery for a surviving spouse a part of the Wrongful Death Act. ACandS, 703 So.2d at 494 (“[T he surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.” (quoting § 768.21(2), Fla. Stat. (1995))). The third district implicitly concluded that because the surviving spouse can recover from the date of injury, the loss of consortium from the date of injury merges with the continuing injury suffered after death, and the surviving spouse therefore recovers. We find this analysis problematic because it considers only a situation where a wrongful death action can be maintained. Indeed, under the third district’s interpretation, where the injured spouse dies from an injury unrelated to the personal injury action, the surviving spouse who suffered a loss of consortium would not be able to maintain a wrongful death action. Therefore, the surviving spouse would lose a vested right to recover for a loss of consortium from the date of injury to the date of death. This cannot be the result the Legislature intended and, here, that would be the effect.

We affirm the trial court’s dismissal of the personal injury action. We reaffirm our holding in Taylor that a loss-of-consortium claim survives the death of a deceased spouse. Accordingly, we reverse the trial court’s dismissal of Appellant’s loss-of-consortium claim and remand for the trial court to reinstate the claim. We also maintain the preexisting conflict with the third district in ACandS, Inc. v. Redd, 703 So.2d 492, 494 (Fla. 3d DCA 1997).

AFFIRMED in part; REVERSED in part; REMANDED with instructions; CONFLICT CERTIFIED.

SAWAYA and EVANDER, JJ, concur.

      . Taylor v. Orlando Clinic, 555 So.2d 876, 878 (Fla. 5th DCA 1989), disapproved on other grounds, Capone v. Philip Morris USA, Inc., 116 So.3d 363 (Fla.2013).

      . We affirm without discussion the trial court’s finding that Appellant failed to demonstrate excusable neglect.

      . The supreme court also addressed a jurisdictional issue not relevant here.


author: SAWAYA, J.

text:
    Raissa WILSON, Appellant, v. William TERWILLINGER, Appellee.
    No. 5D13-1478.
    District Court of Appeal of Florida, Fifth District.
    June 20, 2014.
    Geoffrey P. Golub, of Geoffrey P. Golub, P.A., Melbourne, for Appellant.
    Stephen J. Biggie and Joseph Wood, of Arcadier & Associates, P.A., Melbourne, for Appellee.
   SAWAYA, J.

We answer a question certified by the Brevard County Court as a matter of great public importance. The query posed is

[wjhether an addendum, providing for liquidated damages or an early termination fee, as provided in the rental agreement, in the form set forth in § 83.595(4), Fla. Stat., constitutes a valid, binding obligation, where the parties’ lease, in the form approved by the Florida Supreme Court and The Florida Bar, omits any reference to liquidated damages or an early termination fee.

The county court answered “No,” concluding that in addition to the provision of liquidated damages in the addendum, the lease must also include a similar provision, and if it does not, the provision in the addendum is unenforceable. As indicated in the certified question, the parties in this case utilized the lease form approved by the Florida Supreme Court, which omits any reference to liquidated damages upon early termination. Certification is premised on the belief, expressed by the county court in the judgment under review, that the widespread use of these forms presents a persistent problem when adden-dums are executed that make provision for liquidated damages when the lease itself contains no such provision. Considering the problem to be a matter of great public importance, the case was directed to us for review. Having accepted review, we arrive at a different answer. We alert the reader that because the answer derives from analysis of pertinent clauses in the lease agreement between the parties and statutory provisions, quotation from those sources will be prevalent in this opinion.

This appeal emanates from a residential lease dispute between the landlord, Raissa Wilson, and the tenant, William Terwillinger. At the time the lease agreement was signed by the parties, Terwillinger and Wilson also executed an addendum to the lease entitled “Early Termination Fee/Liquidated Damages Addendum,” which provided two options: acceptance of the liquidated damages or early termination fee provision; or disagreement with the liquidated damages or early termination fee provision and acknowledgement that the landlord may seek damages as provided by law in the event of a breach. Terwillinger (and Wilson) chose the first option, which specifically provides:

I agree, as provided in the rental agreement, to pay $4,500 (an amount that does not exceed two months’ rent) as liquidated damages or an early termination fee if I elect to terminate the rental agreement and the landlord waives the right to seek additional rent beyond the month in which the landlord retakes possession.

Although the provisions in the body of the lease do not include this remedy, the addendum is attached to the lease.

The dispute erupted when Terwillinger sent Wilson a notice stating that “[w]e will be exercising the termination clause per the current, and legally binding, lease, as well as the current tenant/landlord laws and statutes.” The notice further stated that payment would be made on the last day of the lease and not as specified by Wilson. This notice is an obvious reference to the liquidated damages provision in the addendum, which apparently Terwil-linger considered a part of the lease. In any event, Terwillinger did not pay the liquidated damages fee, so Wilson filed suit alleging that Terwillinger vacated the premises in violation of the provisions of the lease. She sought the remedy of liquidated damages pursuant to the addendum and asked that the security deposit held by her be applied as partial satisfaction of the liquidated damages amount. The county court held that the remedy of liquidated damages was not available to Wilson for the reasons previously explained and entered judgment in favor of Terwillinger. We believe that the remedy was available to Wilson.

The Florida Residential Landlord and Tenant Act provides a choice of remedies a landlord may seek when the tenant abandons or surrenders the premises in breach of the lease agreement. Those remedies are found in section 83.595, Florida Statutes (2012), and include the option of imposing liquidated damages in a stated amount that does not exceed the total of two months’ rent. § 83.595(4), Fla. Stat. (2012). Highlighting the provisions most pertinent to our discussion, the statute provides that the landlord may:

Charge liquidated damages, as provided in the rental agreement, or an early termination fee to the tenant if the landlord and tenant have agreed to liquidated damages or an early termination fee, if the amount does not exceed 2 months’ rent, and if, in the case of an early termination fee, the tenant is required to give no more than 60 days’ notice, as provided in the rental agreement, prior to the proposed date of early termination. This remedy is available only if the tenant and the landlord, at the time the rental agreement was made, indicated acceptance of liquidated damages or an early termination fee. The tenant must indicate acceptance of liquidated damages or an early termination fee by signing a separate addendum to the rental agreement containing a provision in substantially the following form:
[) I agree, as provided in the rental agreement, to pay $_ (an amount that does not exceed 2 months’ rent) as liquidated damages or an early termination fee if I elect to terminate the rental agreement, and the landlord waives the right to seek additional rent beyond the month in which the landlord retakes possession.
[ ] I do not agree to liquidated damages or an early termination fee, and I acknowledge that the landlord may seek damages as provided by law.

Id. (emphasis added). Thus, in order to avail themselves of this particular remedy, landlords must obtain from the tenant an executed addendum to the lease agreement wherein the landlord and tenant choose the liquidated damages remedy.

The stated rationale for the county court’s answer to the certified question is founded on the specific provision in the addendum “as provided in the rental agreement.” Since this language derives from section 83.595(4), the county court concluded that the provision is statutorily mandated and if the lease agreement does not provide a liquidated damages provision, then a provision in an addendum to the lease is necessarily invalid.

We reject this rationale and the conclusion upon which it is based. Remember that the addendum was signed by Terwillinger at the same time the lease agreement was signed, so both were executed as part of the same transaction. “The law is well established that two or more documents executed by the same parties, at or near the same time, and concerning the same transaction or subject matter are generally construed together as a single contract.” Citicorp Real Estate, Inc. v. Ameripalms 6B GP, Inc., 633 So.2d 47, 49 (Fla. 3d DCA 1994) (citations omitted). This rule bears the moniker “contemporaneous instrument rule,” Popwell v. Abel, 226 So.2d 418, 421 (Fla. 4th DCA 1969); its origins are of rather ancient vintage, see, e.g., Taylor v. Am. Nat’l Bank of Pensacola, 63 Fla. 631, 57 So. 678, 685 (1912); and it has been consistently applied by this court and others since its inception. See Leon F. Cohn, M.D., P.A. v. Visual Health & Surgical Ctr., Inc., 125 So.3d 860, 863 (Fla. 4th DCA 2013); Whitley v. Royal Trails Prop. Owners’ Ass’n, Inc., 910 So.2d 381, 383 (Fla. 5th DCA 2005); Mnemonics, Inc. v. Max Davis Assocs., Inc., 808 So.2d 1278, 1280 (Fla. 5th DCA 2002) (“In reviewing the ... transaction, we view the lease agreement, maintenance agreement, and equipment acquisition agreement as one integrated document because they were executed by the same parties at or about the same time and concern the same transaction or subject matter. When an agreement between the parties consists of several instruments executed by them at or near the same time and concern the same transaction or subject matter, they are generally construed together as a single contract.” (citation omitted)); Courtesy Auto Grp., Inc. v. Garcia, 778 So.2d 1000, 1002 (Fla. 5th DCA 2000) (same); Collins v. Citrus Nat’l Bank, 641 So.2d 458, 459 (Fla. 5th DCA 1994) (same). A principle similar to the one embodied in the contemporaneous instrument rule has been incorporated into the provisions of section 83.595(4), which states that the liquidated damages remedy “is available only if the tenant and the landlord, at the time the rental agreement was made, indicated acceptance of liquidated damages or an early termination fee.” § 83.595(4), Fla. Stat. (2012).

We believe that when Terwillinger and Wilson executed the lease and the addendum at the same time and as part of the same transaction, they intended the addendum and its provision for liquidated damages to be a part of the lease, thus sufficiently complying with the statutory provision “as provided in the rental agreement.” Id. Parenthetically, we note that the lease agreement states that the addendum is page seven of seven pages, indicating that the lease agreement consists of seven pages including the addendum, thus lending further support to the conclusion that the parties intended the addendum to be a part of the lease. We, therefore, think it would be superfluous to require that the lease repeat the provision included in the addendum when both documents are read together as one encompassing instrument.

We answer the question presented by holding that when a tenant and the landlord execute an addendum choosing the remedy of liquidated damages or an early termination fee pursuant to section 83.595, the remedy is enforceable if the addendum is executed at the same time as the lease (which does not make provision for the remedy) as part of the same transaction. Terwillinger chose his remedy with his eyes wide open and his gaze intently fixed upon the liquidated damages provision in the addendum he signed. He should not be relieved of the consequences of his choice because he did not gaze upon it twice when there is nothing to indicate that once was not enough. We, therefore, reverse the judgment under review and remand this case to the county court to enter judgment in favor of Wilson in the amount of $4,500, minus the amount of the security deposit Terwillinger previously paid Wilson.

REVERSED and REMANDED.

TORPY, C.J., and BERGER, J., concur.

      . This court’s jurisdiction derives from rules 9.030(b)(4)(A) and 9.160, Florida Rules of Appellate Procedure. Wilson filed a timely notice of appeal with the circuit court, which ordered that the case be transferred to this court.

        . See In Re Revisions to Simplified Forms Pursuant to Rule 10-2.1 (A) of Rules Regulating The Fla. Bar, 50 So.3d 503, 503-11, 523-24 (Fla.2010) (setting forth the form contract without passing on its legal correctness).

      . §§ 83.40-682, Fla. Stat. (2012).

      . See also City of Miami Beach v. Carner, 579 So.2d 248, 252 (Fla. 3d DCA 1991).

      . Of course, this holding assumes that the other provisions of the statute are complied with, including provisions relating to the sixty-day notice requirement and the amount of damages and fees.