author: SLEET, Judge.

text:
    DEPARTMENT OF TRANSPORTATION, Appellant, v. BUTLER CARPET COMPANY, a Florida Corporation, d/b/a Bob’s Carpet Mart, Appellee. Department of Transportation, Appellant, v. CHK, LLC, a California Limited Liability Company, Appellee.
    Case No. 2D15-2030, Case No. 2D15-3075 CONSOLIDATED
    District Court of Appeal of Florida, Second District.
    Opinion filed May 31, 2017

      , Clinton L. Doud, Special Counsel and Marc Peoples, Assistant General Counsel, Department of .Transportation, Tallahassee, for Appellant.
    Raymond T. Elligett, Jr., and Shirley T. Faircloth of Buell & Elligett, P.A,,'Tampa; James A.Helinger, Jr., of Law Offices of James-A; Helinger, Jr,; and D. Tobyn DeYoung of D: Tobyn DeYoung, P.A., St. Petersburg, for Appellees.
   SLEET, Judge.

The Department of Transportation appeals the stipulated final' judgments awarding damages to Butler Carpet Company and CHK, LLC, in individual inverse condemnation actions brought by Butler and CHK concerning properties along U.S. 19 in Pinellas County. We affirm the trial courts’ awards to Butler and CHK of damages for the actual physical takings of portions of their properties. However, because the trial courts in these individual cases both erred in finding that the Department’s partial physical takings of the properties directly caused severance damages for loss of access and visibility and that access to each property was substantially diminished as a result of the U.S. 19 construction project, :we reverse those portions of the final judgments that award ■severance damages and damages for substantially diminished access and loss of visibility.

The facts in these cases are undisputed. Both properties are similarly situated on either side of U.S. 19 in Pinellas County— Butler on the eastern side and CHK on the western side. Butler owns and operates. a business called Bob’s Carpet Mart on its property, and CHK owns property upon which there is a furniture store. Pri- or to the Department’s U.S. 19 reconstraction project, Butler’s property directly abutted the road’s northbound lanes and CHK’s property directly abutted the southbound lanes. At that time, motorists could directly access these commercial properties via driveways that connected to U.S. 19, as well as by other local roads running along the sides and backs of the •properties. Old U.S. 19 was rebuilt as an elevated highway with twenty-five-foot-high walls. On either side of U.S. 19, the Department constructed frontage roads that directly abut Butler’s and CHK’s properties. As such, there is no longer direct access from U.S. 19 to Butler’s and CHK’s properties, and instead access is via the frontage roads and the existing side and rear local roads. The frontage roads can be accessed from U.S. 19 at major intersections via exit ramps and U-turns beneath overpasses. The exits include signage displaying businesses’ names and addresses to alert motorists of which exit to use to access properties along the frontage roads.

New U.S. 19 and the frontage roads were constructed on the Department’s own right of way. But the Department encroached upon small portions of Butler’s and CHK’s properties to construct driveways and sidewalks connecting the properties to the frontage roads, and an additional portion of Butler’s parking lot was used to build a drainage area. The Department did so without permission from the property owners and without instituting eminent domain proceedings. As á result, both Butler and CHK filed actions for inverse condemnation against the Department.

The Department stipulated pretrial that it did not have the legal right to physically invade Butler’s and CHK’s properties and that the reconstruction of U.S. 19 damaged both properties. As such, the only issue at each trial was whether the damage caused by the Department was compensable.

After conducting nonjury trials on the issue of liability, both trial courts entered orders finding compensable takings for the physical encroachment and construction upon the properties and ruling that both Butler and CHK were also entitled to severance damages for loss- of access and visibility and damages for substantially diminished access. The parties then entered into mediated settlement agreements setting forth the amounts of damages, as well as attorney fees and costs.

On appeal, the Department does not challenge either trial court’s finding that physical takings occurred in these cases. Rather the Department argues that the trial courts erred in finding compensable severance damages for loss of access and visibility due to the' Department’s partial physical takings. The Department maintains that the loss of access and visibility did not result directly from the physical takings but rather from the overall impact of the construction of new U.S. 19 and the frontage roads on the Department’s own property. The Department also argues that the trial courts further erred in determining that Butler and CHK were entitled to compensable damages because the project substantially diminished access to their properties. We agree with both of the Department’s arguments.

The general policy of takings law “is that owners of property taken by a governmental entity must receive full and fair compensation.” Fla. Dep’t of Transp. v. Armadillo Partners, Inc., 849 So.2d 279, 282 (Fla. 2003) (quoting Broward County v. Patel, 641 So.2d 40, 42 (Fla. 1994)). “When less than the entire property is being appropriated, ‘full compensation for the taking of private property ... includes both the value of the portion being appropriated and any damage to the remainder caused by the taking.”’ Id. at 282-83 (quoting Div. of Admin. v. Fenchman, Inc., 476 So.2d 224, 226 (Fla. 4th DCA 1985)). “The damage to the remainder caused by the taking is also referred to as severance damages, damage caused by severing a part from the whole.” Id.

I. SEVERANCE DAMAGES

In an inverse condemnation proceeding grounded upon an alleged loss of access, the trial court makes both findings of fact and conclusions of law. Palm Beach County v. Tessler, 538 So.2d 846, 850 (Fla. 1989). The trial court, as finder of fact, resolves all conflicts in the evidence and “[b]ased upon the facts as so determined ... then decides as a matter of law whether the landowner has incurred a substantial loss of access by reason of the governmental activity.” Id. On appeal, “the trial court’s factual findings are afforded deference, but its application of the facts to the law ... is reviewed de novo.” Dep’t of Transp. v. Fisher, 958 So.2d 586, 590 (Fla. 2d DCA 2007).

The general rule in takings law is that “[wjhen less than the entire property is taken, compensation for damage to the remainder can be awarded only if such damage is caused by the taking.” Div. of Admin., State Dep’t of Transp. v. Capital Plaza, 397 So.2d 682, 683 (Fla. 1981) (emphasis added) (determining that the landowner was not entitled to severance damages for loss of access caused by a new median that was constructed on the Department’s own right of way and not by the widening of a road that was performed on a portion of property taken from the landowner); see also City of Jacksonville v. Twin Rests., Inc., 953 So.2d 720, 723-24 (Fla. 1st DCA 2007) (reversing award .of severance damages for changes in traffic flow caused by construction of new median on the city’s own right of way because award was inconsistent with supreme court’s holding in Capital Plaza “that landowners have no compensable interest in traffic flow and that, in order to receive severance damages, any complained-of impairment must result directly from a taking” (quoting Capital Plaza, 397 So.2d at 683)).

Nevertheless, Butler and CHK maintain that they are entitled to severance damages here pursuant to this court’s opinion in Fisher, 958 So.2d 586. In Fisher, where there was no physical taking by the Department, a landowner whose property-abutted U.S. 19 before the roadway’s reconstruction brought an inverse condemnation action for loss of access because he was left with only direct access to a frontage road. This court ultimately reversed the summary judgment based on our conclusion that the landowner’s access had not been substantially diminished. But in doing so, this court stated that “when the government physically appropriates some-portion of a property owner’s land, any diminished access to the property may be considered as part of the severance damages owed for the reduced value of the remainder of the land.” Id. at 589 (citing Tessler, 538 So.2d at 849). Both trial courts in the instant cases relied upon this statement to conclude that the Department’s physical takings here automatically entitled Butler and CHK to severance damages for loss of access. Such, however, is a misreading of Fisher.

This statement in Fisher does not create an automatic entitlement to severance damages for loss of access whenever there has been a partial taking. This court merely stated that, diminished access “may be considered” when determining severance damages, 958 So.2d at 589. There was no reason for this court to elaborate on this legal concept in Fisher because there was no partial taking in that case and severance damages therefore were not at issue. But this court did recognize in Fisher that in order to establish compensable damages for lack of access, a landowner must show a connection between the government action and the loss of access. Id. at 592 (“[T]he Fishers have not shown that the Department’s actions destroyed or diminished access to their property. Rather, they have shown only that drivers must now travel a less convenient route from the newly constructed U.S. 19 to their property. Thus ... the Fishers have failed to show that they have suffered a compen-sable loss of access.”).

Accordingly, where there has been a partial taking of property and the landowner brings a claim for loss of access, the trial court must first determine whether the claimed loss of access is a direct result of the use or activity on the land taken or, whether it is solely the result of activity that occurred on property other than that, taken from the property owner. If the claimed loss of access is not caused by the use to which the property taken has been applied, the property owner is not entitled to severance damages for loss , of access. Capital Plaza, 397 So.2d at 683. But if the evidence demonstrates a direct connection between the activity on the taken property and the claimed loss of access, the property owner is entitled to severance damages for the loss of access he or she can prove. Fisher, 958 So.2d at 589.

Applying this standard to the instant cases, we conclude that Butler and CHK are not entitled to severance damages' for loss of access. The Department’s takings of these properties were for the specific purpose of reconstructing Butler’s and CHK’s driveways to connect the properties to the public frontage road and, in Butler’s case, to construct a drainage area. But Butler’s and CHK’s claims for loss of access did not relate to this construction and instead were grounded upon the reconfiguration of U.S. 19 and construction of a frontage road system, which — like the median in Capital Plaza — occurred on the Department’s own existing right of way, not on the land taken from the property owners.

We do recognize that in Lee County v. Exchange National Bank of Tampa, 417 So.2d 268 (Fla. 2d DCA 1982), this court carved out a very narrow exception to Capital Plaza’s general rule. The Lee County exception “authorizes an award for damages to the remainder where the use of the land taken constitutes an integral and inseparable part of a single use to which the land taken and other adjoining land is put.” Id. at 270. However, a taking does not fall within this exception, and severance damages are not proper, if it is “practicable to separate the use of the land taken from that of the adjoining land.” Id. at 271 (quoting Pub. Serv. Elec. & Gas Co. v. Oldwick Farms, Inc., 125 N.J.Super. 31, 308 A.2d 362, 365 (Ct. App. Div. 1973)). Such is.the ease here. There is a clear distinction between the project constructed on the Department’s right of way and the work executed on Butler’s and CHK’s properties. The U.S. 19 project involved major construction of a new elevated highway and the frontage road system for the purpose of improving the flow of traffic on U.S. 19. In contrast, construction upon the taken portions of Butler’s and. CHK’s properties was designed to enhance and improve driver access between the properties and the frontage roads. Butler’s and CHK’s claims of loss of access stem from the Department’s use of its own right of way independent of the small portions of land taken from the property owners. This is not the factual scenario envisioned by the Lee County court. See id. at 269-70 (noting that a good example of the general rule’s exception would be highway construction cases “grounded on the premise that it is impossible to separate the damages caused by the small portion of-the highway built upon the taken , land from the damages caused' by the highway as a whole” (emphasis added)).

At trial, Butler and CHK each presented the expert witness testimony of an engineer, who stated that' the use to which their land was put was an “integral and inseparable part of the entire project” because the reconstruction of U.S. 19 made it necessary for the Department to connect the properties to frontage roads, improve the sidewalks, and in Butler’s case, provide a drainage area. He also testified that the sidewalks had to be improved to comply with the federal Americans with Disabilities Act in order for the Department to receive federal funds to complete the entire project. But there was no testimony or evidence that the work on the land taken by the Department directly caused a loss of access, gee Twin Rests., 953 So.2d at 722 (“Twin put on no evidence that the actual taking of its property, as opposed to effects it anticipated from median-induced changes in traffic flow, would cause any severance damages.”). In fact, both he and the Department’s engineer agreed that the work performed on the property taken improved access from both properties to the frontage road. As such, the Lee-County exception is inapplicable to the instant cases. See Lee County, 417 So.2d at 271 (“[WJhere it is possible" to separate the element of damage to remaining lands due to use of the land taken from the owner, from the damage thereto flowing, from the use of lands taken from others for the same project, the measure of damage is limited to that caused by use of the land taken from the owner.” (quoting Oldwick Farms, 308 A.2d at 364)).

As such, Butler and CHK are not entitled to severance damages for their claims of loss of access.

II. SUBSTANTIAL DIMINUTION OF ACCESS

Independent of their claims for severance damages due to loss of access, Butler and CHK could be entitled to compensation if the Department’s actions amounted to a taking by substantially diminishing access to their properties. See Tessler, 538 So.2d at 849 (holding that “[t]here is a right to be compensated through inverse condemnation when governmental' action causes a substantial loss of access to one’s property” independent of whether there was a physical taking).-“The owner of property abutting a public wa[y] has a right of ingress to and egress from his property.” Weir v. Palm Beach County, 85 So.2d 865, 868-69 (Fla. 1956); see also § 334,03(20), Fla. Stat. (2009) (defining “right of access” as “the right of ingress to a highway from abutting land and egress from ■ a highway to abutting, land”). “[W]hen an established land service road is converted into a.limited access facility the abutting property owners are entitled to compensation for the destruction of their previously existing right of access.” Anhoco Corp. v Dade County, 144 So.2d 793, 797 (Fla. 1962). However, this right is “subordinate to the underlying right of the public to enjoy the public way to its fullest extent as well as ... to have the way improved to meet the demapds of public convenience and necessity.” Weir, 85 So.2d at 869; see also Bowden v. City of Jacksonville, 52 Fla. 216, 42 So. 394 (1906). And “ ‘access’ as a property interest does not presently include a right to traffic flow even though commercial prpperty might very well suffer adverse economic effects as a result of a diminution in traffic.” State Dep’t of Transp. v. Stubbs, 285 So.2d 1, 4 (Fla. 1973).

In Tessler, 538 So.2d at 849, the Florida Supreme Court explained:

It is not necessary that there be a complete loss of access to the property. However, the fact that a portion or even all of one’s access to an abutting road is destroyed does not constitute a taking unless, when considered in light of the remaining access to the prpperty, it can be said that the property owner’s right of access was substantially diminished.

The trial courts here relied on Tessler to determine that there had been compensa-ble takings of access in the jnstant cases. Based on our de novo review, we conclude that this was error. See Fisher, 958 So.2d at 590.

In Tessler, the court concluded that evidence that the proposed government action in that case, when completed, “would block all access” to the public roadway that the landowner’s business fronted and would leave “access thereto only through a circuitous alternative route through residential streets” supported “the conclusion that there was a substantial loss of access.” 538 So.2d at 847, 850. Here, however, the government action did not “block all access” to the public roadway; instead, the Department’s reconstruction project included public frontage roads that provided access to U.S. 19 from Butler’s and CHK’s properties. As such, Tessler is factually distinguishable from the instant case.

So too are Stubbs, 285 So.2d 1, and Department of Transportation v. Kreider, 658 So.2d 548 (Fla. 4th DCA 1995), both of which Butler and CHK cite on appeal. In Stubbs, the Departments project included a plan to permanently close the part of the public road abutting the landowner’s property without constructing a service road or any other road to replace access to the public road, “seriously disturbing], if not destroying]” the property’s ingress and egress. 285 So.2d at 3. The landowner’s property would go from being “accessible to automobile traffic moving both north and south” on the public road to being placed in a cul-de-sac. Id. at 2. In Kreider, the abutting landowner’s access to the main travel lanes of a state road was replaced with access to a one-way service road that was characterized as a “road to nowhere.” 658 So.2d at 550. Neither factual scenario is similar to the facts of the instant cases.

Furthermore, placement on a frontage road alone does not per se amount to a substantial diminution of access or, therefore, a compensable taking. See Tessler, 538 So.2d at 849 (“The loss of the most convenient access is not compen-sable where other suitable access continues to exist.”); see also Rubano v. Dep’t of Transp., 656 So.2d 1264, 1269 (Fla. 1995) (“[W]e noted in Anhoco[, 144 So.2d 793,] that the completion of the service road, which provided Anhoco with access to the highway, had effectively remedied Anhoco’s access problem.”); Fisher, 958 So.2d at 589-90 (concluding that access was not substantially diminished despite the fact that Fisher’s property could: only be reached via the frontage road); cf. Anhoco, 144 So.2d at 798 (“It will be recalled that by the time the instant condemnation suit was instituted the State Road Department had constructed a frontage road paralleling the limited access facility and running the length of Anhoco’s property. This road appears to have provided reasonable access to the new highway from both theaters. If this had been done at the outset much of the instant problem would never have arisen.”).' Instead, placement on the frontage road is a factor to be considered in the accessibility analysis.

• In the instant cases, the provision of frontage roads preserved -Butlér’s and CHK’s individual access to a public road. And as the supreme court in Tessler recognized, a property owner’s right of ingress and egress is to a public road, not to a particular public road. 538 So.2d at 849 (stating that “the fact that a portion or even all of one’s access to an abutting road is destroyed does not constitute a taking unless” the landowner’s overall access is substantially diminished (emphasis added)). Additionally, access to Butter’s and CHK’s properties via side and rear roads was unaffected by the U.S. 19 project.

Butter and CHK presented evidence below similar to that presented by the landowner in Fisher of the longer routes northbound and southbound drivers would have to take to access the affected properties via exit ramps, U-turns, and frontage roads. 958 So.2d at 590. Like we did in Fisher, we conclude that Butter and CHK have merely established that they have lost “their most convenient means of access” to their properties but that-such “is not compensable under the clear holding of Tessler.” Id. at 590-91. “[M]ere circuity of aecess is not compensable unless thé remaining access to the property is ‘substantially diminished.’ ” Id. at 589.

Additionally, Butter and CHK have not demonstrated that they have suffered special damages, not common to the general public. See Rubano, 656 So.2d at 1270 (“[I]f injury or inconvenience is the same in kind as that suffered by others similarly situated, but different only in degree, compensation is not recoverable.” (quoting Anhoco, 144 So.2d at 798)). Butter and CHK are in no different position than any other landowner abutting a U.S. 19 frontage road. They have not established that they are entitled to compensable damages due to the substantial diminution of access to their properties.

III. LOSS OF VISIBILITY

With regard to Butter’s and CHK’s claims of loss of visibility, we start with the general rule that any decrease in visibility suffered as a result of the overall U.S. 19 construction project is not compen-sable. See Dep’t of Transp. v. Weggies Banana Boat, 576 So.2d 722, 724 (Fla. 2d DCA 1990). In Weggies, this -court stated that “any decrease in visibility or increased circuity of access Weggies-suf-fered as a result of the overall design of the project is not compensable.” Id. For that proposition, this court relied on Division of Administration, State Department of Transportation v. Ness Trailer Park, Inc., 489 So.2d 1172, 1180 (Fla. 4th DCA 1986), which involved a loss of access claim — not a loss of visibility claim — and which , relied on the Capital Plaza general rule to reverse an award of severance damages “when the directly taken property was not used for the purpose of limiting access.” As such, this court in Weggies recognized that the general rule of Capital Plaza is not limited to loss of access claims. See Capital Plaza, 397 So.2d at 683 (“When less than the entire property is taken, compensation for damage to the remainder can be awarded only if such damage is caused by the taking.” (emphasis added)). Here, Butler and CHK allege loss of visibility caused by the construction of elevated- U.S. 19. Because they have not alleged a damage that is the result of the partial taking, Capital Plaza precludes recovery for their loss of visibility claims.

Furthermore, “the agency controlling the street may in fact interfere with easements of light, air, and view without [it] constituting a taking so long as the' interference is reasonable.” State, Dep’t of Transp. v. Suit City of Aventura, 774 So.2d 9, 14 (Fla. 3d DCA 2000) (first citing Tessler, 538 So.2d at 848; and then citing Benerofe v. State Rd. Dep’t, 217 So.2d 838, 839 (Fla. 1969)). In Suit City, the Third District concluded that the “interference” there, “i.e., the elevation of the lanes[, was] not a taking of light, air, or view (or visibility). Reducing the traffic distress at this intersection by elevated lanes is certainly within the discretion of the [Department] and is well within the bounds of reason.” Id. Here, the reconstruction of U.S. 19 on the Department’s own right of way for the purpose of increasing traffic flow and reducing traffic distress is also well within the bounds of reason. As such, Butler and CHK are not entitled to severance damages based on their claims of loss of visibility.

IV. CONCLUSION

We affirm- the awards to Butler and CHK of damages for the actual physical takings of portions of. their properties. However, we reverse the trial courts’ awards of ■ severance damages and damages for substantially diminished access and loss of visibility. Furthermore, even though the parties agreed to specific amounts of attorney fees and costs in their mediated settlement agreements, those agreements also noted that the- Department reserved the right to appeal “this matter in its entirety.” As such, on remand, the trial courts shall reconsider the issue of attorney fees and costs.. Finally, because our disposition will reduce the amounts of the overall awards to-.Butler and CHK, on remand the trial courts shall also recalculate prejudgment interest.

Affirmed .in part, reversed in part, and remanded with instructions.

CASANUEVA and ROTHSTEIN-YOUAKIM; JJ., Concur.

      . We have consolidated these appeals for the purposes of opinion only.

      . CHK and Butler both engaged the same engineer to testify as an expert witness at their respective trials.

      . "A limited access facility may be described generally as a broad super-higjiway with traffic lanes separated by a central median strip, and with ingress and egress to and from the highway only at designated interchanges or crossovers, oftentimes substantial distances apart.” Anhoco, 144 So.2d at 797.

      . The engineer for Butler and CHK based his distance calculations on a starting point that would require every driver traveling to these businesses to opt to use an exit other than the one nearest to each business. We can only assume that the reason for this method of calculation was to enhance the evidence of routes that are circuitous and time consuming, but the length of the new routes supported by this testimony does not change our analysis under Tessler and Fisher.


source: Caselaw Access Project

author: CASE, JAMES R., Associate Senior Judge.

license: Public Domain

text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY, Appellant, v. Elizabeth ARREOLA and Maria de Arreola, Geico General Insurance Company, and Kimberly Lee, Appellees.
    Case No. 2D16-2831
    District Court of Appeal of Florida, Second District.
    Opinion filed June 2, 2017

      B. Richard Young, Amanda L. Kidd, Stephanie A. McQueen, and Joshua J. Hartley of Young, Bill, Boles, Palmer & Duke, P.A., Pensacola, for Appellant.
    Charles M. Schropp and Charles P. Schropp of Schropp Law Firm, P.A., Tampa; and Dennis G. Diecidue of The Dieci-due Law Firm, P.A., Tampa, for Appellees Elizabeth Arreola and Maria De Arreola.
    No appearance for remaining Appellees.
   CASE, JAMES R., Associate Senior Judge.

Government Employees Insurance Company (Geico) appeals the partial summary judgment ruling that it was required to pay an attorney’s fee judgment entered against Elizabeth Arreola and Maria De Arreola (the Arreolas) under the supplemental payments provision of the Arreo-las’ policy. We decline to address Geico’s arguments on appeal because the partial summary judgment is a nonfínal, nonap-pealable order. However, because the partial summary judgment impermissibly authorized execution before the entry of a final judgment, we convert the appeal into a petition for writ of certiorari and quash the order on review.

Elizabeth Arreola was driving a vehicle owned by Maria De Arreola when she was involved in an accident with another vehicle. The driver of the other vehicle filed a personal injury action against the Arreo-las. Pursuant to the Arreolas’ policy, Geico defended the suit and assigned a salaried attorney employed by Geico. The policy gave Geico the right to control the defense. During the litigation, the driver served $25,000 proposals for settlement on both Elizabeth and Maria De Arreola. Geico’s attorney did not accept the proposals and allowed them to expire. Following a jury trial, the driver obtained a verdict which resulted in a judgment against the Arreo-las for $80,428.32. The driver also obtained a judgment for attorney’s fees against the Arreolas for $121,000 pursuant to the proposal for settlement statute. See § 768.79, Fla. Stat. (2014).

The Arreolas filed suit against Geico. Their complaint alleged that Geico acted in bad faith and breached its fiduciary duty in handling the claim against the Arreolas, that the attorney assigned to the case by Geico was professionally negligent, and that Geico was responsible for such negligence under the doctrine of respondeat superior.

The Arreolas moved for summary judgment as to the attorney’s fee judgment entered against them, arguing that Geico was required to pay for these fees under the additional payments provision of the Arreolas’ policy — a theory of liability that was not alleged in the complaint. The trial court granted the motion and entered the partial summary judgment, finding that Geico was liable for the attorney’s fee judgment under the supplemental payments provision in the Arreola’s policy. The judgment also let execution issue.

Geico timely appealed the partial judgment, arguing that the trial court erred in determining that it was liable for the attorney’s fees assessed against the Arreolas. This court issued an order to show cause as to why this appeal should not be dismissed as from a nonfínal, nonappealable order.

Both parties insist that this court has jurisdiction over the final judgment. They insist that the judgment was final in name and form and that it authorized execution. They further argue that the breach of contract claim is separate and distinct from the bad faith claim and that the two claims could be tried independently of one another. In support of this, they allege that the claims are based on separate facts and issues: the bad faith claim requires a determination that under the totality of the circumstances Geico acted in bad faith in handling the claim, while the breach of contract claim simply requires the interpretation of the policy.

We disagree that the judgment is an appealable partial final judgment. Florida Rule of Appellate Procedure 9.110(k) provides:

Except as otherwise provided herein, partial final judgments are reviewable either on appeal from the partial final judgment or on appeal from the final judgment in the entire case. A partial final judgment, other than one that disposes of an entire case as to any party, is one that disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims. If a partial final judgment totally disposes of an entire case as to any party, it must be appealed within 30 days of rendition.

However, “not all partial judgments are immediately appealable.” Hallock v. Holiday Isle Resort & Marina, Inc., 885 So.2d 459, 461 (Fla. 3d DCA 2004). “[P]ieeemeal appeals will not be permitted where claims are interrelated. and involve the same transaction and the same parties remain in the suit.” Jensen v. Whetstine, 985 So.2d 1218, 1220 (Fla. 1st DCA 2008) (quoting S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla. 1974)). This court considers three factors in determining whether a partial judgment may be appealed under rule 9.110(k):

(1) Could the cause of action disposed of by the partial summary judgméht be maintained independently of the' other remaining causes of action? (2) Were one or more parties removed from the action when the partial summary judgment was entered? (3) Are the counts separately disposed of based on the same or different facts?

Universal Underwriters Ins. Co. v. Stathopoulos, 113 So.3d 957, 959 (Fla. 2d DCA 2013) (quoting Dahly v. Dep’t of Children & Family Servs., 876 So.2d 1245, 1248 (Fla. 2d DCA 2004)). The second factor does not apply to this case. See id. at 960 n.2. Further,

[a]n analysis of “interdependence” requires the court to look primarily to the facts upon which the claims are based. If the claims arise out of the same incident, the order dismissing some, but .not all, of the counts will not constitute a final appeal, even if the counts involve separate and severable legal theories.

Biasetti v. Palm Beach Blood Bank, Inc., 654 So.2d 237, 238 (Fla. 4th DCA 1995).

As a threshold matter we note that the partial judgment did .not dispose of any claims pleaded in the complaint. The Arreolas’ claim that Geico was liable-for the attorney’s fee judgment under the supplemental payments provision was first made in their motion for summary judgment. Moreover, this claim is interdependent with at least the bad faith claim which is still pending in the trial court. While the bad faith claim may require proof of additional facts, both claims sound in contract, see Am. Vehicle Ins. Co. v. Goheagan, 35 So.3d 1001, 1003 (Fla. 4th DCA 2010) (“In Florida a bad faith claim is an action ex contractu”), seek recovery for overlapping damages (the attorney’s fee' judgment), and arise from Geico’s handling of a claim made against the Arreolas. Just because the breach of contract claim centers around a disputed issue of law and.the bad faith claim focuses on disputed facts does not render the claims independent of one another. See Pellegrino ex. rel Pellegrino v. Horwitz, 642 So.2d 124, 126 (Fla. 4th DCA 1994) (“[Pleading or proving differing legal theories does not establish that the counts are separate and distinct for the purpose of appealability where the counts arise from a set of common facts.”). This is illustrated by the fact that the pending bad faith claim has the potential of mooting the issue on appeal. That is, if it is determined that Geico handled the claim in bad faith, the Arreolas will be able to recover for the attorney’s fee judgment entered against them regardless of whether it was covered by the supplemental payments provision. See Cont’l Ins. Co. v. Jones, 592 So.2d 240, 241 (Fla. 1992) (“[Djamages recoverable in a first-party bad faith suit under section 624.155, Florida Statutes (1989), are those damages which are the natural, proximate, probable, or direct consequence of the insurer’s bad faith.”).

Accordingly, the partial summary judgment is a nonfinal, nonappealable order. But this does not end our analysis. Under Florida Rule of Appellate Procedure 9.040(c),: “[i]f a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy.” In its response to this court’s order to show cause, Geico raised the alternative argument that this court should exercise its certiorari jurisdiction to quash the partial, judgment because it authorizes exeeu-, tion prior to the entry of a final appealable judgment. We agree.

• Before an appellate court can exercise its certiorari jurisdiction, “[a] petitioner must establish (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal.” Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995). The latter two requirements are jurisdictional. Id. at 649. Geico has satisfied the jurisdictional prongs in this case because the partial judgment subjects it “to execution at a time when it has .no appellate remedy and therefore cannot protect its assets by filing a supersedeas bond.” E. Ave., LLC v. Insignia Bank, 136 So.3d 659, 665 (Fla. 2d DCA 2014). Such an order also constitutes a departure from the essential requirements of law. See id. (reasoning that “[pjermitting execution prior to completion of the litigation” is an “impropriety exceed[ing] the level of mere legal error”). Accordingly, we convert this appeal to a petition for writ of certiorari, grant the petition, and quash the summary judgment under review.

Petition for writ of certiorari granted; judgment quashed.

SLEET and LUCAS, JJ., Concur.


author: PER CURIAM.

text:
    Richard PLUMER II, Appellant, v. U.S. BANK NATIONAL ASSOCIATION, etc., Appellee.
    No. 3D17-0999
    District Court of Appeal of Florida, Third District.
    Opinion filed June 7, 2017.

      Richard Plumer II, in proper person.
    McGlinchey Stafford PLLC, and William L, Grimsley (Jacksonville), for appellee.
    Before LAGOA, SCALES and LUCK,' JJ. '
   On Appellant’s Motions

PER CURIAM.

On or about May 3, 2017, pro se appellant, defendant and counter-plaintiff below, Richard Plumer II, appealed to this Court the lower court’s April 4, 2017 non-final order.-While not entirely clear from the record, it appears that this April 4, 2017 order denied Plumer’s motion seeking a default against appellee, plaintiff and counter-defendant below, U.S. Bank National Association on Plumer’s counterclaim. The trial court’s April 4, 2017 order also prevented Plumer from scheduling any more hearings before the trial court prior to the scheduled April 28, 2017 trial date on U.S. Bank’s foreclosure case and Plumer’s counterclaim. That trial was rescheduled by the trial court to May 12,2017.

The trial court docket indicates that, following a May-12,2017 non-jury trial, the trial court entered a final judgment ■ Of foreclosure for U.S. Bank. It is unclear from the face of the trial court’s judgment how Plumer’s counterclaim was adjudicated, if at all.

On May 16, 2017, Plumer filed a motion asking this Court to take judicial notice "of filings in a related lower court case. We deny that motion. Florida Rule of Appellate Procedure 9,200 prescribes how the record on appeal is assembled by the lower court clerk and how the parties may include or exclude items from the record.

On May 18, 2017, Plumer filed a motion with this Court seeking a new trial and other relief from the trial court’s May 12, 2017 final judgment. We deny this motion, without prejudice, to Plumer filing, within 30 days, an amended Notice of Appeal that conforms to the requirements of Florida Rules of Appellate Procedure 9.110(d) and 9.900(a). If Plumer chooses to file an Amended Notice of Appeal seeking review of the trial court’s May 12, 2017 final judgment, this Court’s scope of review also includes any ruling or matter adjudicated by-the. lower court in the proceedings, assuming:that orders reflecting any such challenged rulings are attached to the Amended Notice of Appeal. Fla. R. App. P. 9.110(h), 9.900(a).

We note that Plumer’s initial May 3, 2017 Notice of Appeal — purporting to appeal the trial court’s single-page, April 4, 2017 non-final order — contained some 148 pages of argument and other extraneous material outside the scope of rules 9.110(d) and 9.900(a). The parameters governing a party’s briefings to this Court are defined in Florida Rule of Appellate Procedure 9.210, and, as noted above, the record on appeal is governed by rule 9.200. The parties are required to abide by these rules.

We recognize that Plumer is proceeding in this appeal pro se, as is his right. Nevertheless, pro se parties are obligated to abide by the appellate rules. See Greenfield v. Westmoreland, 156 So.3d 1 (Fla. 3d DCA 2007).

So ordered.

      . At this stage, the record of the proceedings in this case is minimal; indeed, the limited record before us reveals no counterclaim,


text:
    Tamarah L. CARGILE, Appellant, v. Juliette Parthenary LANGNER, Appellee.
    Case No. 2D16-908
    District Court of Appeal of Florida, Second District.
    Opinion filed June 9, 2017
    Andrew J. Banyai of Aiken, O’Halloran & Banyai, Fort Myers, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

Appellant’s motion for rehearing is granted. The prior opinion dated April 19, 2017, is withdrawn, and the attached opinion is issued in its place. No further motions for rehearing will be entertained.

Affirmed.

KELLY, SLEET, and LUCAS, JJ., Concur.


author: LUCK, J.

text:
    Victor MONTESINO, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D17-0758
    District Court of Appeal of Florida, Third District.
    Opinion filed June 14, 2017
    Victor Montesino, in proper person.

      Pamela Jo Bondi, Attorney General, for respondent.
    Before SALTER, FERNANDEZ and LUCK, JJ.
   LUCK, J.

Victor Montesino appeals the trial court’s order denying his motion for modification of his sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). The trial court denied the motion as untimely because it was file.d more than sixty days after the imposition of sentence. “Such an order is not reviewable by appeal but may be reviewed under this [CJourt’s certiorari jurisdiction.” Johnson v. State, 932 So.2d 562, 562 (Fla. 3d DCA 2006) (quotation omitted; alteration in original). “We,” therefore, “treat the appeal as a petition for writ of certiorari, and deny the petition.” Iglesias v. State, 76 So.3d 370, 371 (Fla. 3d DCA 2011) (citation omitted).

“Florida Rule of Criminal Procedure 3.800(c) provides that where no direct appeal has been filed, a motion to reduce, modify or mitigate a sentence must be filed within sixty days of the imposition of the sentence.” Id. “[T]he sixty-day requirement of Rule 3.800(c) is jurisdictional,” and “[t]he trial court properly denie[s] [a defendant’s] motion as untimely [where] it was filed more than sixty days from the date his sentence was imposed.” Hernandez v. State, 109 So.3d 865, 865 (Fla. 3d DCA 2013).

Here, Montesino pleaded guilty and was sentenced to eight years imprisonment on November 16, 2015. His motion for modification of sentence was put in the prison mailbox on February 17, 2017. Given the fifteen month gap between the imposition of Montesino’s sentence (without appeal) and his Rule 3.800(c) motion, the trial court correctly denied the motion as outside its sixty days of modification jurisdiction. And because Montesino has not shown that the trial court departed from the essential requirements of law, we deny his petition.

Petition denied.

      . See also Dorsey v. State, 30 So.3d 707, 707 (Fla. 2d DCA 2010) ("Khatrydia Dorsey appeals the dismissal of her motion to modify sentence filed pursuant to. Florida Rule of Criminal Procedure 3.800(c). Such an order is not reviewable by appeal but may be reviewed under this court’s certiorari jurisdiction. Therefore, we treat this appeal as a timely filed petition for writ of certiorari and deny it.” (quotation omitted); Howard v. State, 914 So.2d 455, 456 (Fla. 4th DCA 2005) (“Keith Howard appeals an order denying his motion to mitigate his sentence. Such an order is not appealable, but we treat this as a petition for writ of certiorari, because the denial was based on lack of jurisdiction due to the motion’s untimeliness.” (citation omitted)).

      . We remind the trial courts, as the fourth district did in Howard, "that the routine language in its order[s] that the defendant has the right to appeal th[e] denial of a rule 3.800(c) motion is incorrect and should be eliminated. There is no right of appeal of those orders.” Howard, 914 So.2d at 456.


text:
    Mario Ayende RIOS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-1427
    District Court of Appeal of Florida, Second District.
    Opinion filed June 16, 2017

      Howard L. Dimmig, II, Public Defender, and Tim Bower Rodriguez, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appel-lee. .
   PER CURIAM.

Affirmed.

' VILLANTI, C.J., and BLACK and SALARIO, JJ., Concur.


text:
    Donald BERNAICHE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2016-1887
    District Court of Appeal of Florida, Second District.
    Opinion filed June 16, 2017
    Howard L. Dimmig, II, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Affirmed.

CASANUEVA, KHOUZAM, and BADALAMENTI, JJ., Concur.


text:
    Jermaine COPELAND, DOC #R04598, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5205
    District Court of Appeal of Florida, Second District.
    Opinion filed June 16, 2017.
    Jermaine Copeland, pro se.
   PER CURIAM.

Affirmed.

SILBERMAN, LaROSE, and LUCAS, JJ., Concur.


author: .PER CURIAM.

text:
    Thomas Louis PACK, DOC #S05678, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5343
    District Court of Appeal of Florida, Second District.
    Opinion filed June 16, 2017
    Thomas Louis Pack, pro se.
   .PER CURIAM.

Affirmed.

CRENSHAW, SLEET, and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: ROTHENBERG, J. SCALES, J.

text:
    MP, LLC, Appellant, v. STERLING HOLDING, LLC, etc., et al., Appellees.
    No. 3D15-1062
    District Court of Appeal of Florida, Third District.
    Opinion filed June 28, 2017.

      Joel S. Perwin, P.A., and Joel S. Perwin; Heller Waldman, P.L., and Glen H. Wald-man and Jason Gordon, for appellant.
    Duane Morris LLP, and Harvey W. Gurland, Jr., for appellee TD Bank, N.A.
    Before ROTHENBERG, FERNANDEZ, and SCALES, JJ.

       Judge Fernandez did not participate in oral arguments.

   ON MOTION FOR REHEARING

ROTHENBERG, J.

We grant the appellant’s motion for rehearing, withdraw our opinion filed on December 21, 2016, and substitute the follow-' ing opinion in its place.

The trial court granted TD Bank, N.A.’s (“TD”) motion to dismiss MP, LLC’s (“MP”) claims against TD based on the conclusion that the complaint fails to allege sufficient facts to support MP’s claims against TD. Because the facts alleged are more than sufficient to withstand dismissal, we reverse.

Although MP has sued multiple defendants, its claims against TD are contained in Counts II and VII for civil conspiracy; Count IV for violation of Florida’s RICO Act statute; and Count X for aiding and abetting another defendant’s breach of its fiduciary duties to MP. Before addressing the allegations, it is important to note that TD is the successor in interest to Mercantile Bank (“Mercantile”), and because they represent one entity, they will be referred to either as “the Bank” or, when appropriate, the specific bank will be identified.

The operative complaint alleges as follows. While Mercantile was negotiating its takeover by TD, Mercantile realized that it needed to shore up its portfolio of nonperforming loans in order to maximize the sales price and to avoid governmental scrutiny. Thus, the complaint alleges that Mercantile conspired with the four majority members (“the Majority Members”) of Sterling Holding, LLC (“Sterling”) and other entities owned by the Majority Members of Sterling (“the Non-Sterling Entities”) without the knowledge and to the detriment of the plaintiff, MP, which was a Minority Member of Sterling.

At the time of the alleged conspiracy, the breakdown of Sterling’s membership interests was as follows: Arriaga Enterprises owned a 25% interest; Howard Family Partners owned' a 25% interest; Raffaele Williams owned a 25%’ interest; Scott Weinberg owned a 12.5% interest (combined, “the Majority Members of Sterling”); and MP owned a 12.5% interest. MP claims that in early 2010, when Mercantile was being sold to TD, the Non-Sterling Entities were in financial trouble or in default of their loans with Mercantile and that these loans were the largest non-performiñg loans in Mercantile’s portfolio. Thus, MP claims that Mercantile conspired with the Non-Sterling Entities and the Majority Members of Sterling (who all had membership interests in the Non-Sterling Entities) to cross-collaterálize these nonperforming loans with solvent property owned by Sterling,

To consummate the transaction, MP’s signature was required. However, because the Majority Members of Sterling- and Mercantile believed that MP would never agree to the dilution of Sterling’s interest to benefit the Bank and the Non-Sterling Entities, which MP had no interest in, and that MP would most likely move to enjoin the transaction and draw unwanted attention and scrutiny, MP was not told about the transaction, which closed in April 2010. In addition to not informing MP about the transaction, the complaint alleges that the Sterling defendants created fraudulent documents omitting MP as a member of Sterling, and the Bank, which had full knowledge of MP’s membership interest in Sterling, accepted these fraudulent documents and consummated the cross-collat-eralization.

MP further alleges that in January 2014, the Bank declared a technical default of its loans to Sterling and the Non-Sterling Entities for failure to obtain the requisite insurance and to escrow two months of property taxes. Because Sterling’s loan could not be carved out from the properties owned by the Non-Sterling Entities due to the cross-collateralization, a short sale was conducted and MP’s 12.5% interest in Sterling was rendered worthless.

The trial court dismissed with prejudice MP’s fifth amended complaint based on: (1) MP’s failure “to narrow its legal theories to those most likely to sustain legal analysis under the facts”; (2) the trial court’s inability to “identify in this repeated effort at pleading, any duty to MP which TD Bank breached”; (3) MP’s failure- to plead any facts demonstrating the Bank’s actual knowledge that the documents it relied on, and which' failed to reflect MP’s existence, were false; (4) MP’s failure to plead the elements of conspiracy as to the Bank; and (5) MP’s failure to allege any facts demonstrating any action taken by the Bank to defraud MP. The trial court essentially found that if- any fraud, conspiracy, or wrongdoing took place, it was without. the Bank’s knowledge and participation. As will be demonstrated below, the complaint clearly and repeatedly alleged the Bank’s actual knowledge and participation in the alleged wrongdoing.

The dissent agrees with the trial court that the .Bank’s alleged wrongdoing is not actionable in tort. While we agree that generally the relationship between a lender and a borrower is contractual and thus does not normally extend the duties past what are cpntractually required, in this case, MP has alleged that the Bank conspired with the Sterling defendants to commit tortious acts against MP, and that the Bank itself committed tortious acts against MP for its own benefit. While we recognize' that the allegations 'are just that — allegations, they are sufficiently pled to withstand dismissal for failure to state a cause of action.

STANDARD OF REVIEW

Because the trial court was ruling on a motion to dismiss the complaint, rather than on a motion for summary judgment, the trial court was “required to ‘treat the factual allegations of the complaint as true'and to consider those allegations in the light most favorable to the plaintiffs.’ ” Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 734-35 (Fla. 2002) (quoting Hollywood Lakes Section Civic Ass’n v. City of Hollywood, 676 So.2d 500, 501 (Fla. 4th DCA 1996)). Whether the allegations in the complaint are sufficient to state a cause of action is an issue of law,, which we review de novo. Siegle, 819 So.2d at 734.

THE ALLEGATIONS

I. Counts II and VII, Civil Conspiracy

The elements of a claim for civil conspiracy are: “(a) an agreement ■ between two or more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts done under the conspiracy.” Raimi v. Furlong, 702 So.2d 1273, 1284 (Fla. 3d DCA 1997). There is no requirement that each co-conspirator commit acts in furtherance of the conspiracy; it is sufficient if each conspirator knows of the scheme and assists in some way. Charles v. Fla. Foreclosure Placement Ctr., LLC, 988 So.2d 1157, 1160 (Fla. 3d DCA 2008).

The trial court found that the complaint failed to allege that the Bank was a part of the conspiracy, caused any harm, or had an independent duty to MP. Instead, the trial court found that the allegations in the complaint only show that the Bank was a passive and unknowing conduit for the alleged wrongdoings of the Non-Sterling Entities and the Majority Members of Sterling. Based on the following allegations taken from the operative complaint, the trial court’s findings are clearly incorrect. The complaint clearly alleges that the Bank had actual knowledge as to each conspiracy

A. The general allegations related to the conspiracy alleged in Count II

Paragraph 47 of the complaint alleges that prior to the April 2010 loan closing, a Credit Approval Request Memo was prepared. Paragraph 48 alleges that under the “Ownership/Management Composition” section of this memo, a breakdown of the ownership of each Sterling entity was provided, and in this breakdown, MP was listed as holding a 12.5% membership interest. Paragraph 49 states that “[a]s a consequence of the 2010 Memo, which was prepared prior to the execution of the April 2010 transaction, the Bank was without question aware of MP’s interest in Sterling and purposefully colluded to ram through the transaction to MP’s significant detriment without its otherwise required signature.” (emphasis added).

Besides purposefully keeping MP out of the loop, paragraph 51 alleges:

To’ further the scheme of reducing the loan ratios, Mercantile failed to include certain insurance required by the mortgage covenants in the mortgage payment for the loans. By doing so, Mercantile was able to make it further appear that the debt to income ratios of Sterling and the Non-Sterling Entities were within an acceptable range so that regulators would not require additional reserves, and Mercantile could give the appearance that one of its largest loan portfolios was performing so that TD would proceed with the acquisition of Mercantile.

The next several paragraphs explain that to effectuate the cross-collateralization, Mercantile required that each of Sterling’s members sign off on the new obligation. The complaint then details the scheme that was allegedly orchestrated to hide MP’s membership interest by falsifying the documents. Paragraph 60 specifically alleges that at the closing of the loan modification, sworn representations were made omitting MP’s membership interest in Sterling, and states: “Of course, not only did Arriaga, Howard, Weinberg and Williams [the Majority Members of Sterling] know this was false, but so did ... the Bank .... ” (emphasis added).

Paragraphs 71 and 72 also specifically allege the Bank’s knowledge:

71. As for Mercantile’s knowledge of the fraud, beyond that which is evident by the 2009 [loan modification review] and the 2010 Memo, MP’s managing member met Nachman with Lozano [the Bank’s loan officer] a short time prior to the loan modification which closed on April 2010, Lozano was weli-aware, as the loan officer who processed the loan modification of the loan on Palmetto Gardens, that MP was in fact a member of Sterling and held a 12.5% membership interest in Sterling.
72. ... Notwithstanding that knowledge, Lozano on behalf of the Bank, participated in and manipulated matters on Mercantile’s side to make sure that the closing went through to the benefit of among others, Mercantile,

(emphasis added).

B. The specific allegations related to the conspiracy alleged in Count II

Count II realleges paragraphs 1 through 123 and then specifically lays out the allegations regarding the alleged scheme by the Bank and others to falsify the documents and omit MP’s interests as a member of Sterling in order to preclude MP from objecting to the loan modification, cross-collateralization, and other actions for the benefit of the co-conspirators. Paragraphs 135 and 136 allege that there was an agreement by the Majority Members of Sterling (who also had membership interests in the Non-Sterling Entities) to omit MP as an owner of Sterling from the documents required by the Bank for the loan modification and cross-collateralization. Paragraph 137 specifically alleges that the Bank and the Bank’s loan officer, Lozano, were part of the agreement to remove MP’s name as an owner of Sterling from these documents “while knowing that MP was in fact an owner of Sterling.” Further, paragraph 141 alleges:

TD, as successor in interest to Mercantile, took actions in furtherance of the conspiracy through Lozano, who was an employee of Mercantile, by facilitating the refinancing • and/or modification of the loan for Palmetto Gardens with knowingly fraudulent documents excluding MP’s existence, despite having direct knowledge that MP was a member of Sterling, and by accepting loan documents that intentionally omitted MP as a member of Sterling and falsely stated the membership interest of Sterling, in order to bring the loans back into balance so the sale to TD could close.

(emphasis added).

As this recitation of the allegations clearly demonstrates, Count II of the operative complaint sets forth more than sufficient allegations to satisfy the pleading requirements of civil conspiracy as it relates to the Bank. Contrary to the trial court’s order, MP has sufficiently alleged that the Bank actually knew that the documents it relied on, and which failed to reflect MP’s existence, were false. The complaint alleges that the Bank was not merely a passive conduit to the conspiracy and fraud allegedly committed by the Majority Members of Sterling; rather, the Bank was a willing and active participant in the scheme to keep MP in the dark in order to maximize the sales price of' Mercantile to TD by shoring up Mercantile’s portfolio.

C. The general allegations related to the conspiracy alleged in Count VII

The conspiracy alleged in Count VII involves the short sale of Palmetto Gardens Industrial Park (“Palmetto Gardens”), which was purchased by Sterling in 2005 with approximately $10.5 million in loans. Paragraph 22 alleges that this was a successful venture that produced a positive yearly cash flow. On or about June 29, 2009, Sterling entered into a promissory note, mortgage, and security agreement with the Bank in the amount of $14.4 million (Paragraph 24). The operative complaint further alleges that to consummate the refinancing, the Majority Memhers of Sterling entered into a cross-collateralization of the Palmetto Gardens property with other obligations in which the Majority Members of Sterling had an interest, without MP’s knowledge or consent, thereby encumbering MP’s sole interest in Sterling.

Paragraph 203 of Count VII alleges that SAA, the management company for Sterling, and the Non-Sterling Entities

entered into' an agreement whereby SAA would not pay insurance premiums or pay the escrowed property taxes to TD in order to trigger a default of the •loan documents, and would fail to cure the default, for among other reasons, to trigger the cross collateralization of Palmetto Gardens, which was cash flow positive, and could be utilized to get the members of Sterling other than MP out from under the debt on the Non-Sterling Entities.

Paragraph 204 alleges that in January 2014, TD declared the anticipated technical default of the Palmetto Gardens loans.

Count VII further alleges that when MP learned of the Bank’s declaration of default, it filed a lawsuit against the alleged conspirators, which, at that point, did not include the Bank. Shortly thereafter, the alleged conspirators and the Bank conspired to sell Palmetto Gardens at a short sale at a greatly reduced-.price, allowed two of the Majority- Members of Sterling (Arriaga and Howard) to retain an under-the-table interest in Palmetto. Gardens, and ensured that SAA be retained by the new owner to act as the management company for the property,-Paragraphs 212 alleges that as part of the conspiracy, the Bank agreed to release all of the guarantors from millions of dollars in guarantees, even though.the properties were sold at a discount, without requiring the guarantors to produce financial statements in order to determine their ability to cover the loans or cure .the defaults.

Paragraph 217 alleges that the Bank entered into this agreement with the other alleged conspirators to avoid the allegations of wrongdoing against it in this lawsuit ánd tó eliminate the bad debt it was carrying. And, as already articulated, the complaint alleges that the Bank was able to commit this conspiracy by knowingly accepting falsified documents omitting MP’s membership interest ’so that the cross-collateralization could be accomplished in the first place.

As these allegations are more than sufficient -to withstand dismissal for failing to satisfy the pleading requirements of civil conspiracy as it relates .to the Bank, the trial court erred by dismissing Counts II and VII of the fifth amended complaint.

II. Count IV, Violation of the Florida Racketeer Influenced and Corrupt Organization Act

To survive a motion to dismiss Count IV, alleging a violation of the Florida Racketeer Influenced and Corrupt Organization Act (“RICO”), MP was required to plead the following elements:

(1) the existence of an enterprise, which [the Bank] was employed by or associated with in committing the crimes, (2) a pattern of racketeering activity, and (3) at least two ‘incidents’ of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission, or that are otherwise. interrelated by distinguishing characteristics and are not isolated incidents.

Shimek v. State, 610 So.2d 632, 634-35 (Fla. 1st DCA 1992) (citing Boyd v. State, 578 So.2d 718 (Fla. 3d DCA 1991)).

In dismissing the operative complaint, the trial court concluded that the complaint failed to sufficiently allege, the Bank’s knowledge that the documents it was relying on, when it cross-collateralized the Non-Sterling Entities non-performing loans with solvent property owned by Sterling, were fraudulent. As already addressed in detail, the complaint clearly and unequivocally has alleged that the Bank was a knowing and willing conspirator with full knowledge of the falsity of the documents it relied on to accomplish the cross-collateralization, and the benefits it expected as a result of its participation in the alleged conspiracy. We, therefore, turn to the elements MP was required to plead in support of its RICO claim.

A. The existence of an entérprise which the Bank was employed by or associated with in committing the crimes

As previously addressed, the operative complaint alleges that the Bank conspired with the Majority Members of Sterling and the Non-Sterling Entities to cross-collateralize the largest non-performing loans, and in some cases, loans which were in default, in Mercantile’s portfolio prior to the sale of Mercantile to TD. To accomplish this goal, it is alleged that Mercantile conspired with the Majority Members of Sterling to allow the Bank to cross-collateralize Sterling’s healthy and profitable properties with other defaulting and non-performing loans owed by' the Non-Sterling Entities, in which the Majority Members of Sterling each had a financial interest. And to accomplish this cross-col-lateralization without drawing any attention, it is alleged that, with the Bank’s knowledge and consent, fraudulent documents omitting MP’s interest in Sterling were prepared by Sterling’s Majority Members and were used by the Bank. This was done because MP, which held no interest in the Non-Sterling Entities, surely would have objected to and would have attempted to block the transaction, which would have drawn attention to the weaknesses in Mercantile’s portfolio.-Thus, the complaint sufficiently alleged the existence of and the Bank’s participation in the RICO enterprise.'

B. A pattern of racketeering activity

■ To establish a “pattern of racketeering activity,” MP was required to plead facts establishing a continuing course of conduct or a “series of related predicates extending over a substantial period of time,” State v. Lucas, 600 So.2d 1093, 1094 (Fla. 1992) (quoting H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 241-43, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989)), which is commonly referred to as “continuity." Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1265 (11th Cir. 2004). In Lucas, the Florida Supreme Court held that predicate events occurring over a six-month period were sufficient to prove continuity. Lucas, 600 So.2d at 1093.

MP has alleged that the wrongful predicate acts took place over a period of many months. The complaint alleges that the conspiracy, including the falsification and the, acceptance of the falsified documents, took place in April 2010, and the refinancing was effectuated shortly thereafter» In January 2014, the Bank declared a technical default of the loans for Palmetto Gardens (the property owned-by Sterling) and the Non-Sterling properties due to the failure to maintain insurance and escrow , property .-taxes. (Paragraph 109). After the default was filed, MP filed the instant lawsuit against the alleged conspirators, .except for the Bank, and put the Bank on notice that it might be added to the lawsuit, The complaint alleges that, thereafter, the Majority Members of Sterling, the Bank, and SAA, the management company, “entered into.an agreement to use the excuse of the technical default to enter into a contract for a short sale to a buyer who was all too familiar with Arria-ga and Howard” (Paragraph 112); sold the properties at a reduced price (Paragraph 118); and released the guarantors from their personal guarantees for the Palmetto Gardens property without even attempting to determine if the guarantors had sufficient assets to satisfy the loan deficiency (Paragraph 121). The purpose of this agreement was to allow the Bank and the Majority Members of Sterling to eliminate the debt on the Non-Sterling properties and to hopefully avoid allegations of wrongdoing by MP (Paragraph 122). Therefore, because the alleged predicate acts spanned not just months, but years, the continuity or pattern of racketeering activity requirement was adequately pled.

C. The final element — The existence of at least two incidents of racketeering conduct

The third and final element which must be pled when alleging a RICO violation is the existence of “at least two ‘incidents’ of racketeering conduct that have the same or similar intents, results, accomplices, victims, or methods of commission, or that are otherwise interrelated by distinguishing characteristics and are not isolated incidents.” Shimek, 610 So.2d at 635. For the sake of brevity, we will not repeat the allegations already articulated, which include at least two acts: (1) the falsification and use of falsified documents to facilitate the plan to cross-collateralize Sterling’s healthy property with underper-forming loans owed by the Non-Sterling Entities, in which the Majority Members of Sterling each held a financial interest; and (2) the creation of a technical default on the Sterling and Non-Sterling properties, which enabled the Bank to sell the properties and eliminate the bad debt associated with the non-performing Non-Sterling Entities loans.

The intent of the co-conspirators was the same: financial gain. The purpose, result, and method of commission were all interrelated: to keep MP out of the loop in order to facilitate the cross-collateralization ‘without drawing any attention, and to subsequently use the healthy Sterling properties to allow the Majority Members of Sterling to eliminate their bad debts with the Bank and to allow the Bank to remove these bad debts from its books.

Because the elements of RICO were all pled in the operative complaint, the trial court erred by dismissing Count IV based on MP’s failure to sufficiently plead a cause of action.

III. Count X, Aiding and Abetting Another Defendant’s Breach of its Fiduciary Duty to MP

The trial court’s order failed to articulate the grounds upon which it dismissed Count X. We will, therefore, state the elements of aiding and abetting the breach of another’s fiduciary duty, which admittedly is an uncommon, and yet not an unheard of cause of action, see Pearlman v. Alexis, No. 09-20865-CIV, 2009 WL 3161830, *5 (S.D. Fla. Sept. 25, 2009) (noting that Florida law recognizes the tort of aiding and abetting a breach of another’s fiduciary duty); Williamson v. Answer Phone of Jacksonville, Inc., 118 So.2d 248, 250 (Fla. 1st DCA 1960) (reversing the trial court’s order dismissing Williamson’s complaint, in which she alleged that the telephone company had changed a classification title “for the purpose of aiding and abetting [the other] defendants — in the accomplishment of their intention and purpose to defraud the public and injure the plaintiff”), and then examine the allegations contained in the operative. complaint to determine whether MP satisfied the pleading requirements.

To establish a cause of action for aiding and abetting another' defendant’s breach of its fiduciary duty to the plaintiff, the plaintiff must allege: “(1) a fiduciary duty on the part of the wrongdoer; (2) a breach of fiduciary duty; (3) knowledge of the breach by the alleged aider and abettor; and (4) the aider and abettor’s substantial assistance or encouragement of the wrongdoing.” S & B/BIBB Hines PB 3 Joint Venture v. Progress Energy Fla., Inc., 365 Fed.Appx. 202, 207 (11th Cir. 2010) (applying Florida law); Pearlman, 2009 WL 3161830 at *5. The Eleventh Circuit Court of Appeal, interpreting Florida law in Perlman v. Wells Fargo Bank, N.A., 559 Fed.Appx. 988, 993 (11th Cir. 2014), and Lawrence v. Bank of Am. N.A., 455 Fed.Appx. 904, 907 (11th Cir. 2012),. specifically held that when a claim of aiding and abetting is asserted, against a bank, the knowledge element can only be satisfied if the plaintiff pleads facts demonstrating that the bank had actual knowledge of the underlying wrongs committed. See also Wiand v. Wells Fargo Bank, N.A., 938 F.Supp.2d 1238, 1244 (M.D. Fla. 2013).

Count I specifically alleges that as the managing member of Sterling, Arriaga owed a fiduciary duty, to each of the members of Sterling, including MP, and paragraph 127 lists eleven ways in which Arria-ga breached his fiduciary duty to MP. Paragraph 129 also alleges that Howard Law Offices, the. firm that represented Sterling in the 2010 loan modification and cross-collateralization, and Howard' individually, owed a fiduciary duty to Sterling, including MP, and that Howard Law Offices and Howard breached that duty by preparing documents omitting MP’s membership interest in Sterling and misrepresenting Sterling’s membership interests. Thus, the first two elements were clearly alleged in the operative complaint. The third and fourth elements: the Bank’s knowledge of the breach of fiduciary duties owed to MP by Arriaga, Howard Law Offices, and Howard, and the Bank’s substantial assistance or encouragement of their wrongdoings, were also painstakingly pled in MP’s complaint. It was, therefore, error for the trial court to dismiss Count X of MP’s complaint.

CONCLUSION

■The trial court’s dismissal of MP’s complaint was based on its inaccurate reading of the operative complaint and consideration of the elements relevant to each cause of action. Although the trial court’s dismissal was based primarily on MP’s failure to allege knowledge on the part of the Bank, the operative complaint clearly and repeatedly alleged the Bank’s actual knowledge of and willing participation in the alleged wrongdoing. The trial court therefore erred by dismissing MP’s complaint.

Reversed; remanded.

FERNANDEZ, J., concurs.

SCALES, J.

dissenting.

I respectfully dissent and would not grant MP, LLC’s motion for rehearing in this case. While the majority opinion is compelling, and contains an excellent outline of the facts and causes of action alleged by MP, LLC, I would affirm the trial court’s dismissal of MP, LLC’s claims against TD Bank,'N.A. because I am not persuaded that a commercial lender owes the alleged underlying duties to a minority member of one of the lender’s borrowers.

Indeed, if true, the alleged actions of TD’s predecessor, Mercantile Bank, might border on the unethical; but I agree with the trial court that such actions are simply not actionable in tort. In my view, the duties Mercantile, a commercial lender, owed to participants in the corhmercial transaction with Mercantile’s borrower, Sterling Holding,- LLC, are specified in the parties’ written loan documents. See generally Silver v. Countrywide Home Loans, Inc., 760 F.Supp.2d 1330, 1339 (S.D. Fla. 2011) (“[Tjhere is no tort duty to process loans competently. The relationship [between bank and borrower] is contractual; there is either a breach of that contract or not.”) In my view, under the facts of this case, Mercantile owed no common law tort duties to its borrower, Sterling, much less to MP, LLC, a minority member of Sterling. See, e.g., Watkins v. NCNB Nat’l Bank of Fla., 622 So.2d 1063 (Fla. 3d DCA 1993).

I am particularly concerned that the majority opinion imposes previously unrecognized obligátions on commercial lenders to police the internal corporate governance of their borrowers. From a practical perspective, the majority’s reversal seems to entangle lenders in borrowers’ internal disputes. Not only might such entanglements deter lenders from making otherwise prudent loans, but to impose such duties on lenders might encourage an uncomfortable level of bank-meddling into the strictly internal affairs of borrowers.

I would deny rehearing.

      . The appellant, MP, LLC, filed a motion,for rehearing en banc of the original panel opinion. Pursuant to this Court’s Internal Operating Procedures, when a motion for rehearing en banc is unaccompanied by á motion for rehearing, the motion for rehearing en banc is treated as including a motion for rehearing which must be ruled upon by the panel. Wade v. State, 57 So.3d 993, 994 (Fla. 3d DCA 2011); see also Romero v. State, 870 So.2d 816, 818 (Fla. 2004) (“By treating motions for rehearing en banc as including motions for rehearing, the Third District adheres to die spirit of Florida Rule of Appellate Procedure 9.040(d), which is to 'disregard any procedural error or defect that does not adversely affect the substantial rights of die parties.’ ”).


author: SALARIO, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Loretta J. STATSICK, Appellee.
    Case No. 2D15-5388
    District Court of Appeal of Florida, Second District.
    Opinion filed July 14, 2017

      Kenneth P. Williams of Moffett Vitu Lascoe & Packus, P.C., Birmingham, Michigan; and Dorothy. V. DiFiore of Quintairos, Prieto, Wood & Boyer, Tampa, for Appellant.
    Paul Castagliola and Alexander T. Lewis of Paul Castagliola, P.A., St. Petersburg; and Raymond T.’ Elligett, Jr., of Buell & Elligett, P.A., Tampa, for Appellee.
   SALARIO, Judge.

State Farm Mutual Automobile Insurance Company appeals from an order granting a motion under Florida Rule of Civil Procedure 1.540(b) to vacate a stipulated judgment in an action to recover personal injury protection benefits-brought by Loretta Statsick. Ms, Statsick filed the motion to, vacate after a-question-regarding the res judicata effect of the judgment arose in subsequent litigation. Her motion alleged, and the trial court found, that there was no “meeting of the minds” as to whether, the stipulated judgment would reach claims of the type brought in that subsequent litigation. As a result, the trial court concluded that the agreement underlying the judgment was, void and vacated the judgment. Neither the motion nor the resulting order specified .the subsection of rule .1.540(b) that warranted relief.

We reverse on two bases. First, -to the extent the trial court determined that relief was warranted under 'rule 1.540(b)(4) because the stipulated judgment — having been entered pursuant to a void agreement — was itself void, that was legal error; a judgment' entered pursuant .to a -void settlement agreement is merely voidable, not void, and therefore not within the scope of subsection (b)(4). Second, to the extent the trial court’s “meeting of the minds” finding was intended to support some other basis for relief under rule 1.540(b) — such as mistake under subsection (b)(1) — it was not, and on this record could not have been, supported by competent substantial evidence. We therefore remand with instructions to reinstate the stipulated judgment.

I.

Ms. Statsick is a former Michigan resident who now lives in Florida. She had automobile insurance under a State Farm .policy issued in Michigan and, while visiting her former home state, was in a car accident there. A dispute laj;er arose between Ms. Statsick and State Farm over the existence and extent of State Farm’s obligation to pay PIP benefits to cover medical expenses Ms. Statsick claimed to have incurred as a result of the accident. In 2011, Ms. Statsick sued State Farm in circuit court in Pinellas County, Florida, to recover those benefits.

As the case proceeded toward trial, State Farm served Ms. Statsick with a written offer to stipulate to the entry of a judgment made pursuant to a Michigan rule of civil procedure. The offer was for “stipulated entry of a judgment for [Ms. Statsick’s] whole claim in favor of [Ms. Statsick] and against [State Farm] in the amount of Thirty Thousand ($30,000) Dollars, inclusive of attorney fee^, interest and costs now accrued.” After an exchange of correspondence clarifying that the offer did not extend to Ms. Statsick’s attorney’s fees on a related claim she had made under uninsured motorist provisions of the State Farm policy, Ms. Statsick accepted State Farm’s offer.

At a hearing shortly thereafter, the parties agreed on the record to the language of a judgment for the court to enter. It provided simply that “judgment is entered” in favor of Ms. Statsick and against State Farm “in the amount of Thirty Thousand ($30,000.00) Dollars, [inclusive of attorney fees, [i]nterest and costs now accrued, pursuant to Stipulation of the parties under [the Michigan rule].” The trial court then entered the judgment to which the parties had agreed. State Farm paid, and Ms. Statsick accepted, the $30,000 payment required by the stipulated judgment.

In 2014, Ms. Statsick brought a second action against State Farm in Pinellas County for additional PIP benefits arising out of the same policy and accident but based on medical expenses incurred subsequent to the 2011 litigation. That case was assigned to the same trial judge who handled the 2011 case. State Farm moved for summary judgment arguing that Ms. Stat-sick’s new complaint was barred by res judicata as a result of the stipulated judgment in the earlier case. Ms. Statsick argued that the preclusive effect of the stipulated judgment did not reach claims for PIP benefits based on expenses incurred subsequent to the operative complaint in the 2011 case and that the parties did not contemplate when they submitted the stipulated judgment that it would resolve claims for such medical expenses.

After a hearing at which both parties presented extensive argument, the trial court stated, apparently in view of the parties’ significant divergence of opinion over whether the stipulated judgment barred Ms. Statsick’s new claims, that the parties had not reached a “meeting of the minds” when they resolved the 2011 case. It later entered a written order denying State Farm’s summary judgment motion, which purported to make ah express “factual finding that there was no meeting of the minds regarding the Stipulated Judgment.”

Ms. Statsick then filed a motion in the 2011 case pursuant to rule 1.540(b) to vacate the stipulated judgment, attaching as exhibits the stipulated judgment and the order denying State Farm’s summary judgment motion in the 2014 case. Rule 1.540(b) provides for a trial court to relieve a party from an order or judgment in specified circumstances, such as where the order or judgment is void; where mistake, inadvertence, or excusable neglect warrants relief; or where there has been some newly discovered evidence that is important. Fla. R. Civ. P. 1.540(b)(1), (2), (4). Ms. Statsick alleged that relief under rule 1.540(b) was warranted because the trial court’s factual finding that the parties had no “meeting of the minds” in its order denying summary judgment in the 2014 case rendered the parties’ agreement to stipulate to a judgment void and, as. a result, rendered the stipulated judgment in the 2011 case unenforceable. Ms. Statsick’s motion did not identify a specific ground of rule 1.540(b) under which she sought relief, although the content of the motion implied reliance on rule 1.540(b)(4), which provides for relief from void judgments.

The trial court agreed with Ms. Statsick concerning the “meeting of the minds,” found that “the contractual settlement agreement underlying the Stipulated Judgment is void ... as the parties failed to have a meeting of the minds on the essential terms of the agreement,” and vacated the judgment. Like Ms. Statsick’s motion, thé trial court’s order does not identify a particular rule 1.540(b) ground warranting relief, although it too implies that the trial court found the stipulated judgment void and ordered relief accordingly. State Farm timely appeals.

II.

We ordinarily' review an order granting a motion under rule 1.540(b) for abuse of discretion. Belk v. McKaveney, 903 So.2d 337, 337 (Fla. 2d DCA 2005). But see Wiggins v. Tigrent, Inc., 147 So.3d 76, 80 (Fla. 2d DCA 2014) (“The de novo standard of review also applies to the review of ah order [entered pursuant to rule 1.540(b)(4)] determining whether a final judgment by default is void for lack of personal jurisdiction ...”). Application of this standard to this case is complicated, however, by the fact that neither Ms. Stat-sick nor the trial court identified the provision of rule 1.540(b) under which relief was to have been granted. In this case, that makes a difference.

The most obvious candidate in terms of a basis for relief in view of the trial court’s determination that the agreement leading to the stipulated judgment was void is that the judgment itself is void under rule 1.540(b)(4). A determination that relief under rule 1.540(b)(4) was warranted on that basis depended, in turn, on the legal conclusion that when a settlement agreement forming the basis for a stipulated judgment is void, the resultant judgment itself is void. That conclusion presents a pure question of law, which we evaluate de novo. See Casteel v. Maddalena, 109 So.3d 1252, 1255 (Fla. 2d DCA 2013) (holding that where a trial court’s decision to apply rule 1.540(b) presents “purely a question of law, we apply a de novo review to that decision”).

A judgment is void when it is entered by a court lacking jurisdiction over the subject matter of the case'or jurisdiction over the person of the defendant or .where there is a violation of due process. See Tannenbaum v. Shea, 133 So.3d 1056, 1061 (Fla. 4th DCA 2014) (recognizing that due process violations affecting notice or the opportunity to be heard may void a judgment); Miller v. Preefer, 1 So.3d 1278, 1282 (Fla. 4th DCA 2009) (“A void judgment is one entered in the absence of the court’s jurisdiction over the subject matter or the person.” (citing Sterling Factors Corp. v. U.S. Bank Nat’l Ass’n, 968 So.2d 658, 665 (Fla. 2d DCA 2007))); see also Dep’t of Health & Rehab. Servs. v. Morley, 570 So.2d 402, 404 (Fla. 5th DCA 1990) (describing the “general rule that if a court has jurisdiction over the person and the subject matter, an error in the judgment does not make the judgment void, but rather reversible on appeal”). As a matter of law, then, the trial court could not declare the judgment in the 2011 case void absent allegations and proof that it had no subject matter or personal jurisdiction in that case , or that a party was not given notice or an opportunity to be heard. Neither was alleged or proven here.

Instead, Ms. Statsick appears to have alleged and sought to prove that the stipulated judgment was void because the underlying agreement was void for want of a meeting of the minds. Florida courts have held, however, that this kind of problem in a settlement agreement renders a resultant judgment merely voidable, not void. See Greenwich Ass’n, Inc. v. Greenwich Apartments, 979 So.2d 1116, 1118 (Fla. 3d DCA 2008) (“The plaintiff first argues, that the 2001 judgment must be stricken as void because the settlement agreement that it incorporated was ... void .... We disagree, and hold that the 2001 judgment was voidable, not void.”); Morley, 570 So.2d at 404 (“[D]oes the incorporation of a void agreement into a final judgment likewise render the final judgment void? The answer is no.”); see also Miller, 1 So.3d at 1282-83 (“[Bjecause the trial court had jurisdiction over the subject matter of the 1992 litigation and personal jurisdiction over the parties, the inclusion of an illegal or void provision in the settlement agreement resolving that litigation1 does not render the final judgment incorporating that settlement agreement void per se; such a judgment is merely voidable.”).- Although “[a] voidable judgment can be challenged by motion for rehearing or appeal and may be subject to collateral attack under specific circumstances,’’, such a judgment “cannot be challenged at any time .as void under'rule 1.540(b)(4).” Sterling Factors, 968 So.2d at 665. Thus, to the extent we are reviewing a legal determination that the 2011 judgment is void under rule 1.540(b)(4), that determination was error as .a matter of law.

The parties, however, also argue that the trial court’s decision may have rested on other provisions of rule 1.540(b), such as mistake under subsection (b)(1), fraud under subsection (b)(3), or that prospective apphcation of the judgment is no longer equitable under subsection (b)(5). The abuse of discretion standard applicable under rule 1.540(b), although deferential, requires that the decision to exercise discretion and afford relief under any of these subsections be supported by competent substantial evidence. Sourcetrack, LLC. v. Ariba, Inc., 34 So.3d 766, 768 (Fla. 2d DCA 2010) (“[P]iscretion can only be exercised by a court after it has received competent, substantial evidence permitting a discretionary decision.”); see also Rude v. Golden Crown Land Dev. Corp., 521 So.2d 351, 353 (Fla. 2d DCA 1988) (“Absent such evidence, a court’s vacation of final judgment constitutes an abuse of dis-' cretion.”). That evidence is entirely absent in this case. ri,

Relief under any of these subsections of rule 1.540(b) hinges on the trial court’s factual finding that there was no meeting of the minds as to whether the stipulated judgment would bar a suit for medical expenses incurred after the operative complaint in the 2011 case. That was the only factual allegation made in the motion to vacate, that is the only factual issue tethered to the record, and that is the only factual finding the trial court made. The problem is that this record lacks any evidence to support a finding that there was no meeting of the minds. The hearing on Ms. Statsick’s motion to vacate the stipulated judgment was limited to argument of counsel. No evidence was presented either through witnesses or documents that would have permitted the trial court to make the factual finding that it did. See, e.g., PS Marinas 3 v. Marina Funding Grp., Inc., 889 So.2d 167, 169 (Fla. 3d DCA 2004) (“A determination of the intention of the parties includes a consideration of the surrounding circumstances when the agreement was entered-into.”); Spiegel v. H. Allen Holmes, Inc., 834 So.2d 295, 297 (Fla. 4th DCA 2002) (holding that a trial court’s findings regarding meeting of the minds must be supported by competent substantial evidence). Because there was no evidence to support the finding upon which the trial court granted -the -motion, a decision to vacate the stipulated judgment based on that finding under any subsection of rule 1.540(b) was an abuse of discretion. See Bank of N.Y. Mellon v. Estate of Peterson, 208 So.3d 1218, 1222 (Fla. 2d DCA 2017) (“[I]t is incumbent on the party seeking to vacate a judgment under that rule to come forward with evidence to support its,position, see Rude [v. Golden Crown Land Dev. Corp.], 521 So.2d [351, 353 (Fla. 2d DCA 1988) ], and arguments of counsel do not constitute evidence, see, e.g., Justice v. State, 944 So.2d 538, 540 (Fla. 2d DCA 2006) ....”).

Ms. Statsick relied on the trial court’s separate factual finding in the 2014 case to provide evidence that there was no meeting of the minds, but that finding is pure surplusage without legal effect in this case. It was made in an order denying State Farm’s motion for summary judgment in the 2014 case, which argued that the stipulated judgment was res judicata as to Ms. Statsick’s claims in the. 2014 case. The legal issues the trial court had to resolve in deciding whether to .award summary judgment to State Farm were two: (1) whether State Farm had shown that there was no genuine issue as to any material fact concerning its res judicata defense (and, if so, whether Ms. Statsick had rebutted. State Farm’s showing) and (2) whether State Farm was entitled to judgment as a matter of law. See Fla. R. Civ. P. 1.510(c); see also Sherry v. Regency Ins. Co., 884 So.2d 175, 177 (Fla. 2d DCA 2004). It was required to answer those questions on a limited record of specific summary judgment evidence identified pri- or to the summary judgment hearing by State Farm in support of the motion and by Ms. Statsick,in opposition to it, not a full record after an evidentiary hearing or a trial. See Fla. R. Civ. P. 1.510(c); State Farm Mut. Auto. Inc. Co. v. Figler Family Chiropractic, P.A., 189 So.3d 970, 974 (Fla. 4th DCA 2016) (“[T]he rule ... requires that the 'evidence in support of and in opposition to the motion be specifically identified[ ] prior to the hearing.” (emphasis omitted)).

Given the limited scope of the summary judgment inquiry and record, the trial court was not in a position to make a finding of fact that conclusively resolved whether a meeting of the minds supported the stipulated judgment. See Horner v. State, 158 So.2d 789, 790 (Fla. 3d DCA 1963) (“The very nature of the rule which permits summary judgments, which recites thqt they may be entered when ‘there is no genuine issue as to any material fact’ indicates that it is not the function of a trial judge to make findings of fact and any made are purely surplusage.” (quoting former Fla. R. Civ. P. 1.36(c))). The most it could have found in this ease is that there was a genuine issue of material fact about whether the parties had a meeting of the ipinds and, as a result, that State Farm was not entitled to summary judgment on its res judicata defense. The trial court’s finding in the summary judgment order in the 2014 case is thus immaterial to Ms. Statsick’s motion to vacate in the 2011 case.

Having determined' that the trial court’s order on the motion to vacate must be reversed, we further conclude that remand to determine whether the stipulated judgment was the product of a meeting of the minds is unnecessary. See Coleman (Parent) Holdings, Inc. v. Morgan Stanley & Co., 20 So.3d 952, 955 (Fla. 4th DCA 2009) (“An evidentiary hearing is unnecessary if a [rjule 1.540(b) motion merely undertakes to rehash matters previously litigated at trial or raises inconsequential ‘de minimus’ matters.”). The transcript of the hearing resulting in the parties’ agreement to the judgment shows beyond dispute that the parties agreed, on the record and without ambiguity, to the judgment that the trial court should and did enter. That record further shows beyond controversy that the sole subject of their agreement was the entry of that judgment. That the parties now disagree about whether the judgment precludes claims for medical expenses subsequently incurred by Ms. Statsick does not change the fact that their minds met on the entry of the judgment that was the subject of their agreement. See Lunas v. Cooperativa de Seguros Multiples de Puerto Rico, 100 So.3d 239, 241 (Fla. 2d DCA 2012) (“The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs— not on the parties having meant the same thing but on their having said the same thing.” (quoting Hanson v. Maxfield, 23 So.3d 736, 739 (Fla. 1st DCA 2009))); see also Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla. 1985) (same). In the final analysis, there is no question that the parties agreed to the same thing and that they received what they agreed to.

The question of whether the stipulated judgment reaches claims for medical expenses incurred subsequent to the operative complaint in the 2011 case is not a question of whether the parties agreed to the judgment in the 2011 case — they did— but rather is a question of what the preclu-sive effect of that judgment is. Put differently, whether the stipulated judgment to which the parties agreed reaches Ms. Stat-sick’s claims in the 2014 complaint is a matter of preclusion law, not contract law. See Gallagher v. DuPont, 918 So.2d 342, 346 (Fla. 5th DCA 2005) (“Although a judgment may be entered pursuant to a settlement, once the judgment is entered, its enforceability is not tied to the terms of the settlement.” (citing Sands v. Granoff, 508 So.2d 543 (Fla. 3d DCA 1987))); cf. Livingston v. Frank, 150 So.3d 239, 244 (Fla. 2d DCA 2014) (holding that res judi-cata barred a subsequent claim related to the subject of a takings case that had been resolved by way of stipulated judgment). The stipulated judgment “is entitled to the same preclusive, res judicata effect as any other judgment issued by a Florida court.” Arrieta-Gimenez v. Arrieta-Negron, 551 So.2d 1184, 1186 (Fla. 1989); see also Sea Quest Int’l, Inc. v. Trident Shipworks, Inc., 958 So.2d 1115, 1119 (Fla. 2d DCA 2007) (“The fact that the earlier action was concluded based on a consent judgment does not prevent the prior judgment from precluding the subsequent litigation.”). Whether the stipulated judgment is res judicata as to Ms. Statsick’s claims in the 2014 case is not before us in this appeal, and we express no opinion about it. We hold only that the parties’ present disagreement about the res judicata effect of the judgment they agreed to enter presents no basis for vacating it under rule 1.540(b). The preclusive effect of the 2011 judgment on the 2014 litigation is what it is, regardless of what either party may have thought it was at the time they stipulated to its entry.

III.

For the foregoing reasons, we reverse the order granting Ms. Statsick’s motion to vacate the stipulated judgment and remand the case to the trial court with instructions to reinstate that judgment.

Reversed and remanded.

WALLACE and SLEET, JJ., Concur.

      . The pariies argue extensively about the applicability of Florida and Michigan law and various alleged differences between Florida and Michigan law. As our analysis in the text will make clear, these arguments are largely irrelevant to our resolution of the case. We note, however, that the parties do not dispute that it was permissible for State Farm to make this offer pursuant to the Michigan rule.

      . Ms. Statsick argues that Polk County v. Sofka, 730 So.2d 389 (Fla. 2d DCA 1999), holds differently, but she misreads that case. The facts of Sofka are convoluted, but the bottom line is this: Sofka involved motions to enforce a settlement agreement that asked a trial court to overturn an order granting a new trial; it had nothing to do with an order under rule 1.540(b). See Sofka, 730 So.2d at 391. There is some dicta in Sofka about a meeting of the minds, see id. at 392 n.3, but it says nothing about whether the absence of a meeting of the minds in an agreement involving the entry of a judgment renders a judgment entered pursuant to that agreement void under rule 1.540(b). .

      . We reject Ms. Statsick’s argument that State Farm admitted in a motion for. stay, filed in the trial court that there was no meeting of the minds because, when State.Farm’s statements are viewed in their context,- that argument is not tenable.

      . In this regard, we note that at the summary judgment hearing the trial court itself hypothesized that there was another possible explanation for the parties’ dispute as to the pre-clusive effect of the judgment — "[i]t may also have been the product of one or both of the parties deliberately going ahead with something ambiguous hoping they would come out on top when it was fought about later.”

      . We address questions of preclusion by reference to Florida law because we are a Florida court evaluating a judgment rendered by a Florida court. See generally Restatement (Second) of Judgments ch. 6, intro, note (Am. Law Inst. 1982).

      . Even if the record supported the factual finding that there was no meeting of the minds, we would reject the argument that there had been a mistake remediable under rule 1.540(b)(1). See Eagle FL VI SPE, LLC v. T & A Family P’ship, Ltd., 177 So.3d 1277, 1280 (Fla. 2d DCA 2015) ("Nor does [rule 1.540(b)(1) ] allow a party to avoid the consequences of a decision to settle litigation even if the party regards the settlement as 'bad' in retrospect.” (quoting Smiles v. Young, 271 So.2d 798, 802-03 (Fla. 3d DCA 1973))). We would likewise reject the arguments that the record supports a finding of fraud under rule 1.540(b)(3) or that prospective application of the judgment is no longer equitable under rule 1.540(b)(5) because no evidence supports either ground.