author: LEWIS, J. POLSTON, J.,

text:
    Ruby SAUNDERS, etc., et al., Petitioners, v. Willis DICKENS, M.D., Respondent.
    No. SC12-2314.
    Supreme Court of Florida.
    July 10, 2014.
    Rehearing Denied Nov. 19, 2014.

      Douglas F. Eaton of Eaton & Wolk, PL, Miami, FL, for Petitioner.
    Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale; and Richard T. Woulfe of Bunnell and Woulfe P.A., Fort Lauder-dale, FL, for Respondent.
    Edward J. Carbone of Carlton Fields, P.A., Tampa, FL, for Amicus Curiae The Florida Defense Lawyers’ Association.
    George A. Vaka and Nancy Ann Lauten of Vaka Law Group, Tampa, FL, for Ami-cus Curiae The Florida Justice Association.
   LEWIS, J.

Ruby Saunders, individually and as Personal Representative of the Estate of Walter Saunders, seeks review of the decision of the Fourth District Court of Appeal in Saunders v. Dickens, 103 So.3d 871 (Fla. 4th DCA 2012), on the basis that it expressly and directly conflicts with the decision of the Fifth District Court of Appeal in Goolsby v. Qazi, 847 So.2d 1001 (Fla. 5th DCA 2003), and the decision of the Third District Court of Appeal in Muñoz v. South Miami Hospital, Inc., 764 So.2d 854 (Fla. 3d DCA 2000). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

FACTS

Walter Saunders met with Dr. Willis Dickens, M.D., a neurologist, on July 7, 2003, because he was experiencing back pain, leg pain, and unsteadiness on his feet. Saunders also informed Dr. Dickens that he was experiencing cramps in his hands and feet, numbness in his hands, and tingling in his feet. The physical examination revealed weakness in Saunders’s finger extensors. Dr. Dickens concluded that because Saunders displayed normal reflexes, the numbness and tingling in Saunders’s hands was caused by peripheral neuropathy due to diabetes. However, he did not perform a test to confirm diabetic neuropathy. After the physical examination, Dr. Dickens recommended that Saunders be admitted to the hospital. When Saunders arrived at the hospital, Dr. Dickens ordered an MRI of Saunders’s brain and lumbar spine. The MRI results for the brain were normal; however, the MRI of the lumbar spine demonstrated severe stenosis (narrowing) of the spinal canal.

After he received the lumbar spine MRI results, Dr. Dickens asked Dr. Guillermo Pasarin, a neurosurgeon, for a consultation. Dr. Pasarin testified during depositions that on July 10, 2003, he performed a complete neurological examination of Saunders. Saunders did not inform him of any upper extremity problems, and Dr. Pasarin did not observe any upper extremity abnormalities or read the notation written by Dr. Dickens with respect to Saunders’s symptoms in his hands. Dr. Pasarin reviewed the MRI results, ordered additional radiological diagnostic studies of Saunders’s lumbar spine, and concluded that a lumbar decompression procedure was necessary. Dr. Pasarin performed the surgery on July 15, 2003.

After the surgery, Saunders’s condition did not significantly improve. On September 11, 2003, Dr. Pasarin ordered cervical, thoracic, and lumbar MRIs, which revealed compression in both the lower back and neck. After he received the MRI films, Dr. Pasarin met with Saunders on October 3, 2003, at which point Saunders reported that the symptoms in his arms and hands had worsened since the surgery. Dr. Pa-sarin conducted a physical exam of Saunders, which revealed weakness in his upper extremities and abnormal reflexes in his arms. Dr. Pasarin recommended that cervical decompression surgery be performed within one month, but required that Saunders first obtain medical clearance for surgery. Although Saunders was cleared for surgery on November 6, 2003, Dr. Pasarin did not schedule the surgery in November, and Saunders developed a deep venous thrombosis in December that prevented him from undergoing surgery at that time.

In January 2004, another neurosurgeon met with Saunders. This neurosurgeon concluded that Saunders should undergo a second lumbar surgery and, at a later date, a cervical spine surgery. The neurosurgeon performed the lumbar surgery, but the cervical spine surgery was never performed. Saunders’s condition continued to degenerate until he progressed to quadriplegia. He passed away during the pen-dency of the appeal.

Saunders and his wife filed a failure to diagnose action which included a loss of consortium claim against Dr. Pasarin; Broward Neurosurgeons, LLC; and Bro-ward General Medical Center. They later amended the complaint to include Dr. Dickens as a defendant in the action. All defendants except Dr. Dickens settled with the Saunders. The action against Dr. Dickens proceeded to trial, and Dr. Dickens raised as an affirmative defense that Dr. Pasarin’s negligence was the cause of Saunders’s injury. Dr. Pasarin was included on the verdict form as a Fabre defendant.

During trial, the Saunders presented the expert testimony of a neurologist, who testified that Dr. Dickens had breached the standard of care for a neurologist. He testified that the upper body symptoms displayed by Saunders would lead a reasonable physician to believe that a problem in the neck or brain existed. Further, he testified that after an MRI had clearly demonstrated that the brain was not the cause of the upper body symptoms, the neck would be the next area that a reasonable and prudent physician should and would evaluate. The neurologist also testified that although peripheral neuropathy due to diabetes could have caused some of Saunders’s upper body symptoms, Dr. Dickens breached the standard of care when he failed to consider other potential causes, such as a cervical cord compression. The neurologist opined it was more likely than not that Saunders’s condition would have stayed the same or improved had he been diagnosed with a cervical cord compression in July 2003. However, the expert also stated that a neurologist would defer to a neurosurgeon with regard to whether and when to operate and how to execute the procedure.

The Saunders also presented the testimony of an orthopedic spinal surgeon who met with Mr. Saunders in 2006. At that point, Saunders was a quadriplegic, which the orthopedic surgeon testified was due to a cervical spine injury. The orthopedic surgeon testified that a lumbar cord compression would not cause symptoms in a person’s hand, but rather, such symptoms would be caused by an issue in the cervical spine or brain. However, he acknowledged that the findings of Dr. Pasarin could also be associated with lumbar steno-sis. It was his opinion that had surgery been performed on the cervical cord compression in July 2003, Saunders more likely than not would not have progressed to quadriplegia.

Dr. Dickens presented a neurosurgeon as an expert witness, who testified that based on the July 2003 MRI, as well as the notes and findings of both Dr. Dickens and Dr. Pasarin, it was within a reasonable standard of care for Dr. Pasarin to operate on Saunders’s lumbar spine in July 2003. He explained that the numbness and tingling in Saunders’s hands could have been attributed to something other than a neck problem, but the pain, weakness, and difficulty walking were undoubtedly the result of a lumbar spine problem. Further, he testified that because the primary complaint related directly to Saunders’s legs, there was no reason to suspect a cause other than a lower back problem. He also explained that the major symptoms experienced by Saunders could not have been caused by a cervical cord compression, and a decision on whether to perform surgery on the neck would have been reached after surgery on the lower back. It was his opinion that Dr. Pasarin deviated from a reasonable standard of care because he failed to perform a complete lumbar decompression in July 2008. This failure caused additional injury to Saunders, who was required to undergo a second lumbar surgery in January 2004.

Dr. Dickens also presented a neurologist, who testified that it was within a reasonable standard of care for Dr. Dickens to focus on Saunders’s lumbar spine in July 2003. He explained that a complaint of pain and weakness in the back, without any reference to neck pain or a demonstration of hyper reflexes during the physical examination, signified that the lumbar back, rather than the neck, was the cause of the symptoms. He also testified that tingling in the hands and feet is a common symptom of diabetic neuropathy. However, he acknowledged that, had a cervical MRI been performed in July, it likely would have demonstrated the cervical compression that was discovered in September,

Dr. Dickens also introduced the depositions of Dr. Pasarin, which had been taken prior to the settlement between Dr. Pasa-rin and the Saunders. In the depositions, Dr. Pasarin stated that even if he possessed the results of a cervical MRI in July, he would not have operated on the neck because Saunders had not yet experienced problems with his upper extremities.

At the close of the evidence, Dr. Dickens moved for a directed verdict. He contended that the depositions of Dr. Pasarin rendered it impossible for the Saunders to establish that Mr. Saunders’s injury was caused by any negligence of Dr. Dickens. The trial court determined that causation was an issue for the jury to decide and denied the motion for a directed verdict. During closing statements, counsel for the Saunders asserted that Mr. Saunders would not have progressed to quadriplegia had Dr. Dickens recognized in July 2003 that Mr. Saunders’s upper body symptoms were the result of a cervical problem. Counsel stated:

The purpose of this case, our experts talked about what reasonable and prudent physicians would have done under the circumstances. That is what you, as jurors need to consider when evaluating the liability of Dr. Dickens. You need to assume that had he ordered the right test and a cervical spine showed what everybody said it would have shown, that it would have been the same at that point.
That the surgeon would have acted in a reasonable, prudent manner. Not in a negligent manner, like Dr. Pasarin did. Not like Dr. Pasarin said he would have done.... Dr. Pasarin’s negligence in no way excuses Dr. Dickens’[s] negligence.

Subsequently, counsel for Dr. Dickens contended during closing statements that the Saunders had not established causation. Specifically, counsel stated “[b]ut for Dr. Dickens not doing the MRI, the neck MRI, Dr. Pasarin would have operated on Mr. Saunders’[s] neck in July. That is what the plaintiffs!’] claim must be and it hasn’t remotely come close.” Counsel for the Saunders objected on the basis that this was a misstatement of the law. The trial court overruled the objection, but reminded the jury that it was required to follow the law as provided in the jury instructions. Counsel for Dr. Dickens then discussed the effect of Dr. Pasarin’s testimony on the element of causation. He stated:

Dr. Pasarin testified had I been given the information by the patient, I would have ordered the film. Had Dr. Dickens ordered the film, I wouldn’t have done anything different. That was his testimony. I would have operated on the low back.
So how is it that it can be said that had Dr. Dickens ordered the cervical spine MRI, surgery would have been done on the cervical spine if Dr. Pasarin, the doctor who was there, who was the neurosurgeon said “I wouldn’t have done it. I wouldn’t have done it?”
Which then brings us again to this same question of but for Dr. Dickens ordering the cervical spine films there would have been surgery in July.
Now, they want to suggest to you that somehow things would have been different if there had been someone other than Dr. Pasarin. I guess that’s what they are going to suggest to you.
Well, Dr. Pasarin was the doctor there. It is sheer speculation about what anybody else might have done. And there isn’t anybody else that was involved in this. There has been no testimony whatsoever, no testimony whatsoever that Dr. Dickens should have called in another neurosurgeon, none.
So how is it that there is any evidence at all to link the alleged negligence of Dr. Dickens in failing to call for the cervical spine MRI and Dr. Pasarin’s not
doing the surgery? There is no connection whatsoever.

Subsequently, counsel for the Saunders sought a curative instruction that a Fabre defense is an affirmative defense for which the defendant bears the sole burden of proof, and the Saunders were not required to prove that Dr. Pasarin was negligent. The trial court declined to provide such an instruction on the basis that the jury had already been instructed on the law.

The jury returned a general verdict in favor of Dr. Dickens. The Saunders appealed, and the Fourth District held that counsel for Dr. Dickens did not improperly shift the burden of proof when he asserted that the Saunders had not established causation in light of Dr. Pasarin’s testimony that he would not have changed the course of treatment even if Dr. Dickens had ordered a cervical MRI. Saunders, 103 So.3d at 877. The Fourth District relied on Ewing v. Sellinger, 758 So.2d 1196, 1198 (Fla. 4th DCA 2000), in which it affirmed a directed verdict in favor of an obstetric defendant. See Saunders, 103 So.3d at 878. The obstetrician in Ewing contended that because a subsequent treating physician would not have altered the course of treatment had the obstetrician performed differently, the plaintiffs had failed to establish causation. Ewing, 758 So.2d at 1198. Thus, the Fourth District in the decision below held that pursuant to Ewing, the closing statement by counsel for Dr. Dickens was not improper.

However, the Fifth District in Goolsby and the Third District in Muñoz have rejected the reasoning in Ewing and held that the negligence of a physician cannot be defended on the basis of what a subsequent treating physician allegedly would have done had the first physician not acted negligently. Goolsby, 847 So.2d at 1003; Muñoz, 764 So.2d at 857. We accepted review based upon this conflict.

ANALYSIS

The issue presented in this case regards the burden of proof in negligence actions. This is a pure question of law, which this Court reviews de novo. DAn-gelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003).

Ewing

In Ewing, parents filed a medical malpractice action against obstetricians who provided prenatal care to the mother. 758 So.2d at 1197. After the expectant mother passed her due date, one of the obstetricians recommended that labor be induced, which was done the next day. Id. During labor, a nurse requested the assistance of the on-call physician. Id. Due to the size of the child, the mother suffered permanent injury from the birth and the child was born cyanotic from lack of oxygen. Id. In the subsequent legal action, the parents contended that the obstetrician should have performed a risk assessment, which would have established that a physician should have been present during labor. Id. According to the parents, had the physician been present earlier, he would have performed a cesarean section, and any injury to the mother or the child would have been avoided. Id. However, the on-call physician testified that even if he had been present, he would not have performed a cesarean section earlier because the labor was adequately progressing. Id. at 1198. On this basis, the Fourth District held that the parents failed to establish that the failure of the obstetri-ciari to perform a risk assessment was the legal cause of the injuries. Id. at 1197-98.

Conflict Cases

In Muñoz, the Third District held that testimony by the subsequent treating physician of how he would have proceeded had the prior physician acted differently was speculative and insufficient to support summary judgment in favor of the prior physician, and that the issue of causation was to be decided by the jury. 764 So.2d at 857. In Muñoz, the parents of a child filed a negligence action against, among others, the obstetrician-gynecologist (OB-GYN) who treated the pregnant mother and delivered the child, as well as the hospital where the child was born. Id. The OBGYN performed a sonogram on the pregnant mother, which revealed that one of the child’s kidneys may not have been filtering properly. Id. On the advice of the family pediatrician, no action was taken. Id.

When the baby was born, the OBGYN recorded the results of the sonogram in the chart, but did not personally inform the pediatrician of the results. Id. The pediatrician assumed care of the child after the delivery, determined that the kidney was fine, and discussed the matter with the mother and maternal grandmother. Id. While in the hospital, the child developed two symptoms that, when present together, suggested kidney dysfunction. Id. The hospital alerted the on-call pediatrician, but informed him of only one of the symptoms, which by itself did not suggest kidney dysfunction. Id. The physician ordered treatment of that symptom and the symptom disappeared. Id. at 855. It was later established that the child’s kidneys were severely damaged. Id. at 856.

During trial, the parents presented evidence that the kidney damage would have been preventable had the child been adequately examined and treated after birth. Id. The OBGYN and hospital contended that even if they were negligent, they were not the legal cause of the injuries because the parents and grandparents informed the pediatrician of the sonogram results, and the pediatrician testified that he would not have acted differently had the OBGYN or other hospital personnel also informed him of the results. Id. The Third District held that the speculative testimony of the pediatrician was not determinative of legal causation and the defendants could not rely on the possibility that, had they acted within the applicable standard of care, the pediatrician would not have performed any differently. Id. at 857. The Third District explained that had the defendants conformed to the applicable standard of care, all doubt would be removed as to whether the pediatrician would have acted the same. Id.

The Fifth District reached a similar conclusion in Goolsby, in which the parents of a child born with hip dysplasia filed a negligence action against the doctor who performed x-rays on the child after her birth. 847 So.2d at 1002. The nurses present at the birth observed hip clicks and notified the pediatrician. Id. The pediatrician ordered x-rays from both the defendant and an orthopedic surgeon, neither of whom diagnosed hip dysplasia. Id. The defendant, in reliance on Ewing, contended that no evidence was presented that the pediatrician would have changed her treatment of the child had she been informed that the x-rays demonstrated hip dysplasia and, therefore, there was no evidence that any negligence by him was the cause of any injury. Id. at 1003. However, the pediatrician never testified that she would have ignored a conclusion by the defendant that the x-rays demonstrated hip dysplasia. Id.

The Fifth District disagreed with the decision in Ewing to the extent it held that the negligent failure to diagnose cannot be the cause of damages if a subsequent treating physician testifies that he or she would have disregarded a correct diagnosis. Id. Instead, the Fifth District held that the plaintiffs were not required to prove that the subsequent treating pediatrician would not have acted negligently had the defendant concluded that the x-rays demonstrated hip dysplasia. Id. at 1004.

Medical Malpractice Actions

The elements of a medical malpractice action are: (1) a duty by the physician, (2) a breach of that duty, and (3) causation. See Gooding v. University. Hosp. Bldg., Inc., 445 So.2d 1015, 1018 ' (Fla.1984) (citing Wale v. Barnes, 278 So.2d 601, 603 (Fla.1973)). The duty element requires a physician to act within the standard of professional care. See § 766.102, Fla. Stat. (2013). The standard of professional care is a level of care, skill, and treatment that, in consideration of all surrounding circumstances, is recognized as acceptable and appropriate by similar and reasonably prudent health care providers. Id. In short, it is to provide the care that a reasonably prudent physician would provide. See Pate v. Threlkel, 661 So.2d 278, 280 (Fla.1995). A physician breaches that duty when he or she does not provide the care that a reasonably prudent physician would provide. See § 766.102, Fla. Stat. (2013). Therefore, in a medical malpractice action, the burden is on the plaintiff to establish that the care provided by the physician was not that of a reasonably prudent physician.

Medical malpractice actions often involve a battle of expert witnesses, and each party often presents testimony by experts with respect to what a reasonably prudent physician would have done and the effect that such reasonable care would have had on the patient. It is then the role of the jury to determine how a reasonably prudent physician would have acted. Because the central concern in medical malpractice actions is the reasonably prudent physician standard, the issue of whether a treating physician acted in a reasonably prudent manner must be determined for each individual physician who is a defendant in a medical malpractice action. A subsequent treating physician simply may not be present at the time a defendant physician makes an allegedly negligent decision or engages in a potentially negligent act. Further, it is not only the final physician, but rather each treating physician who must act in a reasonably prudent manner. We hold that a physician cannot insulate himself or herself from liability for negligence by presenting a subsequent treating physician who testifies that adequate care by the defendant physician would not have altered the subsequent care. To do so would alter the long-established reasonably prudent physician standard where the specific conduct of an individual doctor in a specific circumstance is evaluated. It would place a burden on the plaintiff to somehow prove causation by demonstrating that a subsequent treating physician would not have disregarded the correct diagnosis or testing, contrary to his or her testimony and irrespective of the standard of care for the defendant physician. To require the plaintiff to establish a negative inappropriately adds a burden of proof that simply is not required under the negligence law of this State.

This Case

In his closing statement, counsel for Dr. Dickens informed the jury that the Saunders had not established that Mr. Saunders’s injuries were the result of any negligence on the part of Dr. Dickens. Counsel explained that because Dr. Pasa-rin would not have done anything differently had Dr. Dickens ordered a cervical MRI, any purported negligence by Dr. Dickens could not be the cause of Saunders’s injuries. As discussed above, this was a misstatement of the law. The Saunders were required to establish only that Dr. Dickens’s care fell below that of a reasonably prudent physician and that, more likely than not, adequate care by Dr. Dickens would have prevented Mr. Saunders’s devastating injuries. See Gooding, 445 So.2d at 1018 (“In negligence actions Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiffs injury.”). As a result, the trial court erred when it permitted defense counsel to mislead the jury during closing statements.

Moreover, we conclude that this error was harmful. Defense counsel erroneously informed the jury that the Saunders had not proven causation based upon Dr. Pasa-rin’s testimony. The deposition of Dr. Pa-sarin was taken while Dr. Pasarin was in an adversarial relationship with the Saunders. However, prior to trial, Dr. Pasarin entered into a settlement agreement with the Saunders and, as required by section 768.041(3), Florida Statutes (2003), the jury was not informed of the settlement. Because the Saunders were unable to address their prior adversarial relationship with Dr. Pasarin, the jury was unaware that Dr. Pasarin was motivated by a desire to deny wrongdoing and avoid liability. Further, counsel for Dr. Dickens repeatedly relied on this testimony in his improper burden-shifting statements. As a result, we conclude that the closing statement by counsel for Dr. Dickens misled the jury and resulted in harmful error.

CONCLUSION

Based on the foregoing, we hold that testimony that a subsequent treating physician would not have treated the patient plaintiff differently had the defendant physician acted within the applicable standard of care is irrelevant and inadmissible and will not insulate a defendant physician from liability for his or her own negligence. Instead, the burden on the plaintiff with regard to causation is only to establish that adequate care by the physician more likely than not would have avoided the plaintiffs injury. Accordingly, we quash the decision below, disapprove the decision in Ewing, and approve the decisions in Goolsby and Muñoz.

It is so ordered.

LABARGA, C.J., and PARIENTE, QUINCE, and PERRY, JJ., concur.

POLSTON, J., dissents with an opinion in which CANADY, J., concurs.

POLSTON, J.,

dissenting.

I respectfully dissent because I conclude that the Fourth District’s decision in Saunders v. Dickens, 103 So.3d 871 (Fla. 4th DCA 2012), does not expressly and directly conflict with the Third District’s decision in Muñoz v. South Miami Hospital, Inc., 764 So.2d 854 (Fla. 3d DCA 2000), or the Fifth District’s decision in Goolsby v. Qazi, 847 So.2d 1001 (Fla. 5th DCA 2003). Therefore, there is no basis for this Court to exercise jurisdiction.

In Muñoz, 764 So.2d at 855-56, the plaintiffs sued, among others, the obstetrician-gynecologist (OBGYN), who treated the expectant mother, and the hospital, where their child was delivered, arguing that their child’s kidney condition would have been preventable had the OBGYN and the hospital personnel personally informed the subsequent treating physician of the child’s adverse sonogram results. However, the question of causation was taken away from the jury when the trial court entered summary judgment in favor of the defendants, concluding that the alleged negligence of the OBGYN and the hospital could not have been “the legal cause of the child’s condition because [the subsequent treating physician] ... had in fact been informed of the sonogram results by the child’s parents and grandparents, and testified that being also told by the [OBGYN] or the hospital personnel would have made no difference.” Id. at 856. On appeal, the Third District reversed, explaining that the subsequent treating physician’s testimony as to what he would or would not have done if the OBGYN or hospital personnel had personally informed him of the results, although admissible, could not be given “conclusive effect” as a matter of law, and that the issue of causation was for the jury to determine. Id. at 856-57. -

Similarly, in Goolsby, 847 So.2d at 1002-03, the issue of causation was taken from the jury when the trial court entered a directed verdict for the defendant physician, based on his argument that there was no evidence that the subsequent treating physician would have changed her treatment if the defendant had read the x-rays properly and informed her that the x-rays indicated hip dysplasia in the patient. On appeal, the Fifth District reversed, explaining that it disagreed that “the negligent failure to diagnose a condition cannot be the cause of damages if a subsequent treater testifies that he would have shrugged off a correct diagnosis,” especially since the subsequent treating physician in Goolsby did not testify that she would have ignored the correct diagnosis if it had been given, and concluding that “the evidence was sufficient to pose to the jury the question [of] whether [the defendant’s] alleged negligence in reading an x-ray as normal caused damages to the [patient].” Id.

In this case, the defendant, Dr. Dickens, moved for a directed verdict, arguing that the plaintiffs failed to present evidence of causation given the subsequent treating physician’s testimony that, even if Dr. Dickens had ordered the cervical MRI in July 2003 and the results were the same as those in September 2003, he still would not have operated on the neck at that time. Saunders, 103 So.3d at 876. However, unlike Muñoz and Goolsby, the trial court denied the motion for a directed verdict, finding that the issue of causation was for the jury to determine. Id. Thus, the case actually went to the jury, and the jury returned a verdict in favor of Dr. Dickens. Id. This is the essential factor that distinguishes this case from Muñoz and Gools-by.

Because the Fourth District’s decision is factually distinguishable from Muñoz and Goolsby, there is no express and direct conflict, and this Court does not have jurisdiction.

CANADY, J., concurs.

      . Because Saunders passed away during the pendency of the appeal, his estate was substituted as a party.

      . Fabre v. Marin, 623 So.2d 1182 (Fla.1993); see also § 768.81(3), Fla. Stat. (2013). In Fabre, this,Court held that liability must be apportioned among responsible parties on the basis of fault, regardless of whether each party was joined in the action. 623 So.2d at 1185. A Fabre defendant is one who is not a party to the lawsuit, but is alleged to be wholly or partially at fault and is placed on the verdict form so that the jury may apportion a percentage of fault to that person or entity. See Phillips v. Guarneri, 785 So.2d 705, 706 n. 1 (Fla. 4th DCA 2001).

      . We do not address the additional issues briefed in this case, which concern whether counsel for Dr. Dickens improperly shifted the burden of proof when he commented during closing statements that the Saunders failed to produce evidence with respect to the negligence of Dr. Pasarin, and whether the trial court erred when it failed to strike the pleadings of Dr. Dickens.


source: Caselaw Access Project

author: DAVIS, Chief Judge.

license: Public Domain

text:
    Thomas CODDINGTON; Gwynneth Coddington; and State Farm Mutual Insurance Company, Appellants, v. Jaime NUNEZ, Appellee.
    No. 2D12-1152.
    District Court of Appeal of Florida, Second District.
    Sept. 4, 2013.
    Mark D. Tinker and Charles W. Hall of Banker Lopez Gassier P.A., St. Peters-burg, for Appellants.
    W. Thomas Wadley of Yanchuck, Ber-man, Wadley & Zervos, P.A., St. Peters-burg, for Appellee.
   DAVIS, Chief Judge.

Thomas Coddington and his wife, Gwyn-neth Coddington, were involved in an automobile accident in which their vehicle struck a vehicle driven by Jaime Nunez. Mr. Nunez sued the Coddingtons as owners of the vehicle that Mr. Coddington was driving, alleging that Mr. Coddington’s negligence caused the accident and the resulting injuries that Mr. Nunez sustained. The jury returned a verdict that found that the total damages sustained was $600,000 but that Mr. Nunez was twenty-five percent liable for his injuries. Based on this verdict and the award of costs, the trial court entered a final judgment in the amount of $488,500 in favor of Mr. Nunez. It is this final judgment that the Coddingtons now challenge. Because the trial court erred by precluding certain testimony by the Coddingtons’ expert witness, we reverse the final judgment and remand for a new trial.

The Coddingtons were traveling north on 21st Street in St. Petersburg, Florida. Mr. Coddington stopped his vehicle at the stop sign at the intersection of 21st Street and 30th Avenue North. As he proceeded to turn left on 30th Avenue, his vehicle struck the vehicle driven by Mr. Nunez as it approached from Mr. Coddington’s left. This impact caused Mr. Nunez’s vehicle to spin around and strike a nearby palm tree before coming to a final stop. As a result of the accident, Mr. Nunez was thrown from his vehicle and suffered serious physical injuries.

Mr. Nunez alleged below that Mr. Cod-dington caused the accident by entering his lane of traffic as he was approaching. The Coddingtons raised two defenses. First, they argued that the cause of the accident was Mr. Nunez traveling at a speed that exceeded the posted thirty-five-mile per hour speed limit. They supported this argument by pointing to the fact that when Mr. Coddington stopped his vehicle at the stop sign he looked for oncoming traffic and saw none. The Cod-dingtons further relied on the physical damage that resulted from the crash, the final resting position of the vehicles, and the other physical evidence. The Codding-tons also argued that Mr. Nunez failed to wear his seat belt and that this failure contributed to his injuries.

As part of their defense, the Codding-tons sought to introduce the opinion testimony of their expert, James Wheeler, regarding speed, as well as the direction of movement of the driver’s body within the vehicle. Mr. Wheeler had conducted an accident reconstruction analysis by using a computer program developed by the United States government. He testified below that the computer program was based on the simple laws of physics. He entered the weights of the vehicles and the distances the vehicles traveled after impact, and the computer program determined the vehicle speeds at the time of impact. The program also produced a video simulation based on the data entered, and the Cod-dingtons sought to introduce the video simulation as well. Based on Mr. Wheeler’s use of the computer simulation program, he was prepared to testify that, in his opinion, Mr. Nunez was traveling fifty-seven miles per hour at the moment of impact.

Mr. Nunez moved in limine to exclude both Mr. Wheeler’s opinion testimony and the video simulation as scientifically unreliable. Mr. Nunez’s opposition to the opinion testimony was based on two arguments. First, he argued that the cars depicted in the video were not those involved in the accident, pointing out that the simulation depicted a Chevrolet Cáma-ro instead of a Mazda RX-7 — the actual model driven by Mr. Nunez — and a Chevrolet Tracker instead of the Isuzu Rodeo— the model driven by Mr. Coddington. Mr. Nunez also argued that it was unclear whether the development of these computer programs involved the use of accidents with the same features as the instant accident — the striking of a vehicle in the side and the later striking of a tree by the same vehicle.

With regard to whether Mr. Nunez was using his seat belt at the time of the accident, Mr. Nunez’s expert was prepared to provide an explanation that Mr. Nunez could have been secured in his seat belt but that the accident caused him to be thrust into the console resulting in the disengagement of the seat belt. Mr. Wheeler was asked to review this theory. At the hearing on Mr. Nunez’s motion in limine, Mr. Wheeler testified that in his opinion the force of the crash would have thrust Mr. Nunez away from the console instead of toward it, as Mr. Nunez’s expert had put forth. Mr. Wheeler’s opinion was based on his entering Mr. Nunez’s height and weight into the computer simulation program as the description of the person in the driver’s seat and ascertaining the direction of the driver’s movement during the accident.

Mr. Nunez argued below that Mr. Wheeler’s simulation was being presented to prove that Mr. Nunez was ejected from the car and that such evidence was improper because whether or not he was ejected was an issue of fact to be determined by the jury. Mr. Nunez also argued that the differences between the models of the vehicles used in the simulation as compared to the accident introduced interior design differences that would impact whether a person was ejected during the accident.

Following the pretrial hearing, the trial court excluded the video simulation and prohibited Mr. Wheeler from giving any opinion testimony as to the speed of Mr. Nunez’s vehicle and the theory that Mr. Nunez’s seat belt disengaged during the accident. The trial court based its ruling on three premises. First, the trial court determined that the prejudice of showing the video simulation outweighed the probative value of the evidence. Second, the trial court ruled that the methods and procedures used by Mr. Wheeler were not generally accepted in the engineering community. Finally, the court ruled that those methods would more probably than not lead to an unreliable result and that as such any opinion based on the video simulation — or the computer’s work in generating the video simulation — would be excluded as unreliable. However, Mr. Wheeler would be permitted to offer opinion testimony not based on the results of the computer simulation.

We first address the trial court’s conclusions regarding the admissibility of the video simulation itself. Section 90.403, Florida Statutes (2011), provides that “[rjelevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” And “[a] trial court’s ruling on a section 90.403 issue will be upheld on appeal absent an abuse of discretion.” Ramirez v. State, 810 So.2d 836, 843 (Fla. 2001).

Here, in determining that the video simulation’s probative value was substantially outweighed by the possibility of unfair prejudice, the trial court concluded “that the results depicted in the simulation might be right, but the jury is likely to place undue and extraordinary emphasis on the simulation” because “it could very well lead the jury to defer to the opinion of the expert.” This ruling does not amount to an abuse of discretion. See McCray v. State, 71 So.3d 848, 862 (Fla.2011) (“[A] trial court’s decision does not constitute an abuse of discretion unless no reasonable person would take the view adopted by the trial court.”) (quoting Peede v. State, 955 So.2d 480, 489 (Fla.2007) (internal quotation marks omitted)).

Because we conclude that the trial court properly excluded the video simulation pursuant to section 90.403, we need not address the court’s ruling that the expert’s methods used in creating the video simulation are not generally accepted in the engineering community. See Ramirez, 810 So.2d at 842 (“All evidence ... is subject to the requirements of section! ] ... 90.403.”).

However, we must reverse the trial court’s ruling excluding Mr. Wheeler’s opinion testimony as to the speed of the vehicle and the movement of Mr. Nunez’s body inside the vehicle during the accident. See Gen. Motors Corp. v. McGee, 837 So.2d 1010, 1038 (Fla. 4th DCA 2002) (“Even assuming that the video of the crash test was inadmissible in evidence, [the expert] still could have relied on the test to give his opinion .... ”); see also § 90.704 (“The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial.”).

All of the opinions excluded by the trial court were formed using scientifically accepted calculations involving the weight of the vehicles and the distance they traveled under the particular facts of this accident. Mr. Nunez’s argument that the calculations are unreliable because different vehicles are depicted in the video than were involved in the actual crash is without merit. Such differences were purely visual and did not impact the validity of the simulation calculations. The calculations were based on the input of the weights and measurements of the actual cars involved in the accident. And Mr. Wheeler testified below that these types of computer simulation programs had been used for all kinds of accidents to determine speed and that the particular features of this accident did not render the conclusions invalid. While Mr. Nunez pointed out possible discrepancies with the particular application of this simulation to the accident, these arguments at best go to the weight of the evidence rather than to its admissibility. See Gen. Motors Corp., 837 So.2d at 1039.

Finally, with regard to the issue of whether Mr. Nunez was ejected from his vehicle, Mr. Wheeler’s opinion that Mr. Nunez would have been thrust away from the console merely would have rebutted Mr. Nunez’s assertion that he was wearing his seat belt and that it somehow became disengaged when he was thrust into the console. Mr. Wheeler testified that his opinion in this regard was based on the laws of physics and not the interior design of the automobile.

In conclusion, excluding the opinion testimony of the Coddingtons’ expert which was based on the simulation calculations was error. We therefore reverse and remand for a new trial. We note that the issues related to damages as raised by the Coddingtons are mooted by this reversal, and we do not further address them.

Reversed and remanded.

KELLY and LaROSE, JJ„ Concur.

      . Mr. Coddington testified that after the accident, the first thing he saw was Mr. Nunez lying on the ground in front of his car. Likewise, Dr. Zak, a treating physician called by Mr. Nunez, indicated that as a part of his medical history Mr. Nunez advised that he was ejected from the car.

      . As previously noted, evidence was presented below that Mr. Nunez admitted to his treating physician that he was ejected from the vehicle following the accident.

      . Mr. Nunez also argues that the video simulation did not show the vehicles in the exact location as was indicated in the investigating officer's report. But Mr. Wheeler testified that the purpose of the video was not to reproduce the accident exactly but to derive speed and physical force calculations based on the simulated car coming to rest in the same area and traveling the same distance as the actual car.


author: PER CURIAM.

text:
    Bruce Edward McCRAY, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5370.
    District Court of Appeal of Florida, First District.
    June 13, 2014.
    Bruce Edward McCray, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Bruce Edward McCray, Jr., petitions the court for prohibition relief, contending that the trial judge erred in denying his motion seeking her disqualification, and that he is in any event entitled to reassignment of his case to a different judge because his motion for disqualification was not acted upon in a timely fashion. We reject without further comment his claim that his motion was legally sufficient to warrant disqualification, but -write to address his claim that the motion was not ruled on within 30 days, as Florida Rule of Judicial Administration 2.330(j) requires.

McCray’s motion for disqualification bears a service date of August 9, 2013. Rule 2.330(j) provides in relevant part that “[t]he judge shall rule on a motion to disqualify immediately, but no later than 30 days after service of the motion ...,” and McCray’s motion was denied by order of September 16, 2013. McCray argues that because more than 30 days elapsed between service of his motion and its disposition, he is entitled to have a new judge assigned in accordance with the portion of rule 2.330(j) providing that, “[i]f not ruled on within 30 days of service, the motion shall be deemed granted and the moving party may seek an order from the court directing the clerk to reassign the case.” We disagree and therefore deny his petition.

McCray served his motion for disqualification by mail, and Florida Rule of Judicial Administration 2.514(b) provides as follows:

(b) Additional time after service by mail or e-mail. When a party may or must act within a specified time after service and service is made by mail or email, five days are added after the period that would otherwise expire under subdivision (a).

Prior to rule 2.514 taking effect on October 1, 2012, the various rules of court generally provided that where an act was required to be performed within a specified time after service and service is made by mail, additional time was added to “the prescribed period.” See, e.g., Fla. R. Civ. P. 1.090(e) (2012); Fla. R. Crim. P. 3.070 (2012); Fla. R. App. P. 9.420(e) (2012). Under the former rules, five days would have been added to the 30 day period prescribed by rule 2.330(j). See Hatfield v. State, 46 So.3d 654, 655 n. 2 (Fla. 2d DCA 2010) (holding that rule allowing additional time after service by mail extended time for judge to rule on motion to disqualify, and specifically: “That the judge is not a party to the underlying proceeding does not affect the requirement in rule 2.330(c)(4) that the service procedures of rule 1.080 be employed.”). The 35th day following service of petitioner’s motion was Friday, September 13, 2013, and the motion would have been deemed granted if not acted on by that date.

Under rule 2.514(b), however, the additional time is added to the end of the period “that would otherwise expire under subdivision (a)” of the rule. Thus, it appears that computing the additional time allowed after service by mail is now a two-step process. The first step involves determining when the original period would have expired under subdivision (a) of the rule. Here, the 30th day following service of McCray’s motion was September 8, 2013. However, because that was a Sunday, rule 2.514(a)(1)(C) dictates that the period continued to run until the end of the next day that was not a Saturday, Sunday or legal holiday, that being Monday, September 9, 2013. In the second step, five days are added to the result of the computation under subdivision (a), yielding a result of September 14, 2013. Because that date is a Saturday, rule 2.514(a)(1)(C) is again implicated and the trial judge’s time for acting on the motion for disqualification was extended through Monday, September 16, 2013. Accordingly, the order of September 16, 2013, denying the motion for disqualification was entered in a timely fashion.

Apart from explaining the basis for our decision in this case, our opinion is intended to serve the broader purpose of explaining our interpretation of rule 2.514 to the bench, bar and litigants. Upon its adoption in October 2012, Rule 2.514 effectively superseded “any rule of procedure, local rule, court order, or statute that does not specify a method of computing time.” Fla. R. Jud. Admin. 2.514(a). In fact, in addressing the computation of time, the current rules of procedure governing particular classes of cases for the most part simply cross-reference rule 2.514. See Fla. R. Civ. P. 1.090(a); Fla. R. Crim. P. 3.040; Fla. R. Civ. P. — S.V.P. 4.090(a); Fla. Prob. R. 5.042(a); Fla. R. Traf. Ct. 6.350; Fla. R. Juv. P. 8.180(a); Fla. R. Juv. P. 8.240(a); Fla. R. Juv. P. 8.630(a); Fla. R. App. P. 9.420(e); Fla. Fam. L. R. P. 12.090. Accordingly, assuming we have correctly construed the rule, the computation methodology described above will apply in a host of different situations, and as this case exemplifies, may yield different results than would have obtained under the former rules.

In accordance with the foregoing, the petition for writ of prohibition or writ of mandamus is DENIED on the merits.

BENTON, WETHERELL, and MARSTILLER, JJ., concur.

      . The petition before us also includes a request for mandamus relief in the form of an order directing the lower tribunal clerk to reassign McCray's cases. However, petitioner fails to show that he has sought an order of reassignment, and thus fails to demonstrate an entitlement to mandamus relief. See Rowe v. Duetche Bank Nat. Trust Co., 49 So.3d 1285 (Fla. 1st DCA 2010). Moreover, even if McCray had sought an order reassigning his cases, our conclusion that the trial judge timely ruled on the motion for disqualification dictates that he is not entitled to such an order.

      . See In re Amends, to Fla. Rules of Jud. Admin., Fla. Rides of Civil Pro., Fla. Rules of Crim. Pro., Fla. Rules of Civil Pro. for Involuntary Commitment of Sexually Violent Predators, Fla. Probate Rules, Fla. Rules of Traffic Court, Fla. Rules of Juv. Pro., Fla. Rules of App. Pro., & Fla. Family Law Rules of Pro.— Computation of Time, 95 So.3d 96 (Fla.2012).

      . Notably, Florida Rule of Criminal Procedure 3.040 incorporates only subdivision (a) of rule 2.514. That distinction is immaterial here, however, because although this matter arises from a criminal case, motions to disqualify a trial judge are governed by Florida Rule of Judicial Administration 2.330. The computation procedure of rule 2.514 in its entirety therefore applies.


text:
    Sherman SOLOMON, Petitioner, v. Ms. Gena KADY, Mr. Bill Bosco, and Keefe Commissary Network, L.L.C., Respondents.
    No. 1D14-2319.
    District Court of Appeal of Florida, First District.
    Aug. 5, 2014.
    Sherman Solomon, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

The petition for mandamus is denied. See Moore v. Correctional Medical Services, 817 So.2d 963, 964 (Fla. 1st DCA 2002).

LEWIS, C.J., BENTON and MARSTILLER, JJ., concur.


text:
    Bryan M. WOFFORD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5326.
    District Court of Appeal of Florida, First District.
    Aug. 6, 2014.

      Bryan M. Wofford, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal is denied. See Fla. R. App. P. 9.141(c)(4)(F)(i).

WOLF, ROBERTS, and ROWE, JJ., concur.


author: VAN NORTWICK, J.

text:
    Robert Franklin FLOYD, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4465.
    District Court of Appeal of Florida, First District.
    Aug. 26, 2014.
    Rehearing Denied Aug. 26, 2014.
    Michael Ufferman, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   REVISED OPINION

VAN NORTWICK, J.

Robert Franklin Floyd challenges his convictions for second degree murder and shooting into an occupied vehicle. Floyd raises six issues on appeal, but we need only address one. Because the trial court’s conflicting instructions to the jury amounted to fundamental error, we reverse and remand for a new trial.

On February 27, 2010, Floyd was hosting a party at his residence. During that party, a dispute arose among some of those in attendance. According to the State’s evidence, Floyd then shoved one of the individuals, who in turn displayed a pistol and who then retreated to his vehicle with a companion. Floyd meanwhile retrieved a rifle from his vehicle. The State further contended at trial that Floyd was the first to fire his weapon. Floyd, however, maintained that the other two individuals first opened fire from their vehicle and only then did he return fire. A bullet struck the passenger of the vehicle in his back, causing his death. At trial, Floyd claimed self-defense pursuant to the “stand your ground” law.

Before jury deliberations commenced, the jury was instructed in pertinent part:

An issue in this case is whether the defendant acted in self-defense. It fs a defense to all of the offenses with which Robert Franklin Floyd is charged if the death of Gretyron Lopez Benjamin resulted from the justifiable use of deadly force.
The use of deadly force is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to himself or another while resisting:
1. Another’s attempt to murder him or another. Or.
2. Any attempt to commit aggravated battery or aggravated assault upon him or another.
“Deadly force” means force likely to cause death or great bodily harm.
A person is justified in using deadly force only if he reasonably believes that such force is necessary to prevent:
1. Imminent death or great bodily harm to himself or another. Or.
2. The imminent commission of aggravated battery or aggravated assault against himself or another.
Aggravated battery is defined as: ... Aggravated assault is defined as: ....
However, the use of deadly force is not justifiable if you find:
1. Robert Franklin Floyd initially provoked the use of force against himself, unless [:]
A. The force asserted toward the defendant was so great that he reasonably believed that he was in imminent danger of death or great bodily harm' and had exhausted every reasonable means to escape the danger other than using deadly force. Or.
B. In good faith the defendant withdrew from physical contact with another person and clearly indicated to that person that he wanted to withdraw and stop the use of deadly force. But that person continued or resumed the use of force.
In deciding whether a defendant was justified in the use of deadly force you must judge him by the circumstances by which he was surrounded at the time the force was used. The danger facing the defendant need not have been actual, however, to justify the use of deadly force the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed the danger could only be avoided through the use of that force.
Based upon appearances the defendant must have actually believed that the danger was real.
If the defendant was not engaged in any unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force, if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or another, or to prevent the commission of a forceable [sic] felony.

(Emphasis added).

On appeal, Floyd argues that one part of the instruction negated the other, such that while the jury was told that Floyd had no duty to retreat, the jury was also told that Floyd had to exhaust every reasonable means of escaping danger. The State maintains that, when read as a whole, the jury instructions are not so confusing as to constitute fundamental error. We disagree.

In determining whether the jury instructions constituted fundamental error, we must consider “the effect of the erroneous instruction in the context of the other instructions given, the evidence adduced in the case, and the arguments and trial strategies of counsel.” Smith v. State, 76 So.3d 379, 383 (Fla. 1st DCA 2011). As indicated above, the jury was instructed that if the use of deadly force is necessary to prevent imminent death or great bodily harm to oneself or others, then deadly force is justified without regard to any effort to retreat so long as the defendant is not engaged in unlawful activity. A defendant may not use deadly force if the defendant provoked another showing force; however, if the defendant provoked another, who then uses force so great as to put the defendant in fear of death or great bodily harm, then the defendant may use deadly force, but only if the defendant has first exhausted every means of escape. In effect, the jury instruction here provided that Floyd did not have to retreat before meeting deadly force with deadly force if in fear of death or great bodily harm and did have a duty to try to retreat before using deadly force if in fear of death or great bodily harm.

As noted, Floyd’s only defense at trial was that he had used deadly force to defend himself and others. The conflicting jury instructions negated each other in their effect, and therefore negated their possible application to Floyd’s only defense. As the court in Carter v. State, 469 So.2d 194, 196 (Fla. 2d DCA 1985), explained:

[W]here, as here, a trial judge gives an instruction that is an incorrect statement of the law and necessarily misleading to the jury, and the effect of that instruction is to negate the defendant’s only defense, it is fundamental error and highly prejudicial to the defendant.

See also Richards v. State, 39 So.3d 431 (Fla. 2d DCA 2010) (holding that the erroneous use of an outdated jury instruction on the justifiable use of deadly force requiring the defendant to retreat if possible negated defendant’s claim of self-defense and rose to the level of fundamental error); Grier v. State, 928 So.2d 368 (Fla. 3d DCA 2006) (explaining that fundamental error exists when incorrect jury instructions negate defendant’s sole defense).

We therefore reverse Floyd’s convictions, vacate his sentences, and remand for a new trial on both counts. On remand, the trial court is reminded that discretionary costs must be orally pronounced at sentencing before such may be imposed in a written sentence. See Nix v. State, 84 So.3d 424, 426 (Fla. 1st DCA 2012).

WOLF, AND CLARK, JJ., concur.


author: SALTER, J.

text:
    NLG, LLC, Appellant v. Elizabeth HAZAN, Appellee.
    No. 3D13-684.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 2014.
    Rehearing Denied Nov. 3, 2014.
    Megan K. Wells, Miramar, for appellant.
    Levine & Partners and Allan S. Reiss, Miami; Mark D. Cohen, Hollywood, for appellee.
    Before SUAREZ, SALTER and LOGUE, JJ.
   SALTER, J.

A mortgage lender, NLG, LLC (NLG), appeals a final judgment for the mortgagor, Elizabeth Hazan. Finding no basis in the pleadings or applicable law for the positions advanced by the borrower, we reverse and remand for further proceedings.

Facts and Procedural Background

It is undisputed that NLG sold a home on Fisher Island to Ms. Hazan in 2007 for $5,100,000.00, receiving a purchase money note and mortgage on the residence from Ms. Hazan for $1,275,000.00 of that amount. The note and mortgage required an instalment payment of $300,000.00 one month after the sale, and the note was to mature six months after the sale.

When the required payments were not forthcoming, NLG filed a lawsuit for the collection of the promissory note in the Miami-Dade circuit court. A settlement agreement was entered into, but required payments again were not made. In April 2008, and in accordance with the settlement agreement, a default final judgment on the promissory note was entered against Ms. Hazan and in favor of NLG for $1,618,071.29, plus post-judgment interest. That judgment was recorded on May 2, 2008. The final judgment was affirmed by this Court. Hazan v. NLG, LLC, 995 So.2d 504 (Fla. 3d DCA 2008). Ms. Hazan then obtained new counsel and moved to vacate the judgment on the promissory note. The motion was denied and Ms. Hazan’s further appeal was dismissed by this Court. Hazan v. NLG, LLC, 19 So.3d 319 (Fla. 3d DCA 2009).

NLG sought and obtained a sheriffs deed to the Fisher Island property by enforcing its judgment. Ms. Hazan moved to vacate that deed, however, on the grounds that the property was her homestead. The then-assigned circuit judge entered an order in December 2008 “quieting title,” although Ms. Hazan’s motion and the record establish that the order merely extinguished the sheriffs deed. Later, and in this appeal as well, Ms. Hazan argued that the quiet title order also extinguished the lien of NLG’s mortgage.

The parties nevertheless entered into a. second settlement agreement, and Ms. Ha-zan made three of the specified payments before defaulting again in February 2009. After additional settlement negotiations were unavailing, NLG filed a complaint to foreclose its mortgage on the Fisher Island home in 2011. In 2012, NLG amended its complaint to add as a defendant the holder of a recorded junior mortgage for $2,000,000.00. NLG alleges that this mortgage was given by Ms. Hazan to a sham Florida limited liability company established by her mother.

The foreclosure case proceeded to non-jury trial, and the trial court entered a final judgment in favor of Ms. Hazan, incorporating the transcript of his post-trial ruling (January 2, 2013) into the .final judgment “as though set forth herein.” This appeal followed.

Analysis

A review of Ms. Hazan’s pleadings, applicable law, and the transcript of the trial court’s January 2, 2013, hearing, discloses no basis for denying foreclosure to NLG. Default in payment was undisputed (conceded in writing, as it was, in the various settlement agreements, which also included waivers of any defenses). The two arguments advanced by Ms. Hazan’s counsel were flawed.

First, NLG’s prior suit on the promissory note and recordation of a judgment on the note was not an election of remedies precluding the later enforcement of the mortgage. Junction Bit & Tool Co. v. Village Apartments, Inc., 262 So.2d 659 (Fla.1972) (unsatisfied judgment on a promissory note secured by mortgage did not constitute a remedy or a bar to a suit to foreclose the mortgage). See also Royal Palm Corporate Ctr. Ass’n, Ltd. v. PNC Bank, NA, 89 So.3d 923 (Fla. 4th DCA 2012).

As to the second argument advanced by Ms. Hazan’s counsel, the December 2008 order “quieting title” did not extinguish the mortgage or its lien. That order quieted title in Ms. Hazan only to the extent it vacated the sheriffs deed obtained by NLG and disentitled anyone in possession (other than Ms. Hazan) to remain in possession. Neither the motion nor the order support the extinguishment of an unpaid purchase money lien on the home (now exceeding $2,000,000.00), a lien senior to the junior mortgage granted by Ms. Hazan as these proceedings unfolded. Because there is no legal basis for such relief in Ms. Hazan’s pleadings, the trial court’s final judgment must be reversed. BAC Home Loans Servicing, Inc. v. Headley, 130 So.3d 703, 705 (Fla. 3d DCA 2013); Mullne v. Sea-Tech Constr. Inc., 84 So.3d 1247, 1249 (Fla. 4th DCA 2012).

Regarding Ms. Hazan’s affirmative defenses to the effect that NLG and its representative at trial lacked standing because of an internal dispute among the members, the trial court explicitly stated in the January 2, 2013, transcript (incorporated by the final judgment) that NLG did have standing and that its representative (Mr. Kosachuk) was a proper representative of NLG.

Accordingly, we reverse the final judgment and remand the case for further proceedings, including the enforcement of NLG’s mortgage and the reinstatement of the lis pendens and amended lis pendens previously vacated by the final judgment.

Reversed and remanded.