author: May, J.

text:
    Sheila BRYANT and Curtis Bryant, Appellants, v. Raymond MEZO, Appellee.
    No. 4D16-386
    District Court of Appeal of Florida, Fourth District.
    [May 17, 2017]

      Glen M. Blake of Blake, Mildner & Associates, P.A., Fort Pierce, for appellants.
    Carri S. Leiningér of Williams, Leininger & Cosby, P.A., North Palm Beach, for appellee.
   May, J.

The plaintiffs appeal a final judgment of dismissal. They argue the trial court erred in dismissing their complaint for fraud upon the court. We affirm.

The plaintiff and her husband filed a negligence complaint against the defendant after a minor automobile accident. The plaintiff alleged she suffered neck and back injuries.

The accident was minor. The plaintiff was not transported from the scene and was able to return to work the next day. She did not begin receiving chiropractic treatment for her neck and back until two weeks after the accident. A few months later, the plaintiff had neck surgery.

In response to interrogatories, the plaintiff identified a prior worker’s compensation claim in 1987 or 1988, in which she injured her left arm. She did not include any information about neck or back injuries. During her deposition, the plaintiff failed to mention any neck or back injuries, but stated she had only two prior injuries, an ankle and a left arm injury. She did not recall ever experiencing neck or back pain prior to the accident.

Records from the State of Florida’s Division of Worker’s Compensation however revealed the plaintiff filed two worker’s compensation claims, one in 1989 and another in 1993, in which she complained of a cervical spine injury. The records contained a deposition from her former chiropractor, who testified that he treated her for a neck injury two to three days a week for nine months. She was treated more than seventy times for the cervical spine injury. She complained of “rather significant neck pain.” Her chiropractor concluded she had a seven percent impairment of her whole body related to her cervical spine.

Records from Indian River Medical Center revealed the plaintiff was treated for back-related injuries in 1991 and 2006, while billing records from Gilmore Chiropractic revealed she received chiropractic treatment several times during 2004. The plaintiff denied ever visiting a chiropractor prior to the accident.

The defendant moved to dismiss the plaintiffs’ complaint ■ for fraud upon the court and attached the billing history and records of the plaintiffs prior treatments. At the evidentiary hearing, the plaintiff reviewed the records, but continued to deny ever having any prior back or neck injuries or treatment. She was able to recall suffering from a prior arm injury in the 1980’s, which was referenced in the same medical records as the prior spine injury that she could not recall.

The trial court found the plaintiffs alleged memory lapses were selective and her failure to disclose was intentional and untruthful. The court dismissed the complaint with prejudice. From this judgment, the plaintiffs now appeal.

The plaintiffs argue the trial court abused its discretion in dismissing the complaint with prejudice because the defendant did not show clear and convincing evidence that her failure to disclose prior injuries and medical treatment was attributable to fraud rather than a failed memory. The defendant responds that the plaintiff perpetrated a fraud upon the court, warranting the dismissal of the complaint with prejudice.

A trial court’s decision to dismiss a case for fraud upon the court is reviewed under a narrowed abuse of discretion standard. Gilbert v. Eckerd Corp. of Fla., Inc., 34 So.3d 773, 775 (Fla. 4th DCA 2010).

Fraud upon the court occurs when the evidence clearly and convincingly shows a party schemed to interfere with the court’s ability to impartially adjudicate by intentionally hampering the presentation of the opposing party’s defense. Herman v. Intracoastal Cardiology Ctr., 121 So.3d 583, 588 (Fla. 4th DCA 2013). Where repeated fabrications undermine the integrity of a party’s entire case, a dismissal for fraud upon the court is proper. Id.

Here, the trial court heard testimony and reviewed records documenting the plaintiffs prior neck and back injuries. The trial court determined the plaintiffs repeated failure to disclose prior back and neck injuries and treatments were intentional and untruthful. Clear and convincing evidence supports the trial court’s decision to dismiss the complaint.

Not only did the plaintiff fail to disclose any prior neck or back injury, she continued to deny these injuries when confronted by records and medical bills related to those injuries. Her disclosed arm injury was contained in the same medical records as her prior neck injury. The trial court did not abuse its discretion in dismissing the plaintiffs’ complaint.

This case is similar to Ramey v. Haverty Furniture Cos., Inc., 993 So.2d 1014 (Fla. 2d DCA 2008). There, the plaintiff denied ever being treated for head or neck pain despite being prescribed several medications for headaches, receiving a CT scan, and visiting doctors over the span of several years. Id. at 1015-16. The court dismissed the complaint for fraud upon the court. Id. at 1021. While people are not required to remember every specific ailment from their lives, the plaintiffs memory failure was not an isolated incident. Id. at 1017.

Here, the plaintiff did not suffer from one isolated incident of neck and back pain. Rather, the records and bills established she suffered from years of documented pain and corresponding treatment. She denied reality even when confronted with the evidence.

Affirmed.

Klingensmith and Kuntz, JJ., concur.


source: Caselaw Access Project

author: Kuntz, J.

license: Public Domain

text:
    Renee SPECTOR, Appellant, v. Robert L. SPECTOR, Robert L. Spector, P.A., et al., Appellees.
    No. 4D16-0922
    District Court of Appeal of Florida, Fourth District.
    [May 24, 2017]
    Clarified on Denial of Rehearing July 12, 2017

      Chad R. Laing and Dale W. Schley, II of Laing & Weicholz, P.L., Boca Raton, for appellant.
    Kraig S. Weiss and Paul K. Silverberg of Silverberg & Weiss, P.A., Weston, for appellee, Ellen Spector.
   Kuntz, J.

The Former Wife appeals the circuit court’s order denying proceedings supplementary against Ellen Spector, the New Wife of the Former Husband. The Former Wife argues the court erred in finding homestead property and insurance policies are always exempt from the contempt powers of the court regardless of fraud. We agree that the court erred in its conclusion and reverse the order denying proceedings supplementary.

Background

In 1996, the circuit court rendered a final judgment of dissolution of marriage and incorporated post-nuptial agreement. The former couple agreed that the Former Husband would pay the Former Wife $5,000 per month in alimony until his or her death, or until she remarried, that he would transfer to her title and interest in the marital house via quitclaim deed, and that he would maintain whole or term life insurance for her benefit in the amount of $750,000.

Four years later, the Former Husband sought to modify the amount of alimony he owed, a request that the court rejected and labeled “somewhat disingenuous” because he had failed to pay anything to the Former Wife. At that time, the court found the Former Husband in civil contempt for “willful and deliberate failure to comply with the alimony provisions” of their post-nuptial agreement. The court established the alimony arrearages through December 31, 2000 to be $128,024, and ordered the Former Husband to pay a purge amount of $64,012 within thirty days. The court also awarded the Former Wife $100,000 in attorneys’ fees and costs.

Months later, the Former Husband filed for bankruptcy. The bankruptcy court rejected his petition, finding his alimony ar-rearages were not subject to bankruptcy discharge, and awarded the Former Wife over $3,000 in attorneys’ fees. The bankruptcy court’s judgment was recorded as a lien on the Former Husband’s property with the Broward County Clerk of Court.

Before he sought to modify the alimony, the Former Husband married the New Wife. After he remarried, and after he had been held in contempt, he transferred his residence via quitclaim deed from title in his name alone to himself and the New Wife as tenants-in-common. A second mortgage was taken on that house; however, the money was used for “remodeling,” not to satisfy the Former Husband’s obligations to the Former Wife.

At some point not clear from the record, the Former Husband also transferred title in a life insurance policy to the New Wife. The New Wife then borrowed against the entire value of the $200,000 policy. Her candid testimony indicates shielding money from the Former Wife was the purpose of the transfer. The New Wife testified that she “took out the money ’cause my husband and his lawyer were speaking about he would have to give his ex-wife some kind of money .... So we didn’t have extra money so I took out the money for that ...” The record indicates none of the Former Husband’s obligations to the Former Wife were satisfied with this money.

Upon learning of these transfers, and still having not received what the court had determined to be owed to her, the Former Wife moved for proceedings supplementary to execution and to implead the New Wife and the insurance company. The court issued an order for proceedings supplementary and later held an evidentia-ry hearing.

After the evidentiary hearing, the court rendered an order concluding that both the life insurance policy and real property were protected from creditors prior to the transfers. Further, the court accepted the New Wife’s argument that “because the assets were completely protected from creditors prior to the transfer, the mere transfer of that asset would have no effect on the creditor.” Therefore, the court concluded that “as a matter of law, the transfer was not fraudulent.”

Analysis

We review the court’s legal conclusions regarding the application of homestead protections de novo. Partridge v. Partridge, 912 So.2d 649, 649 (Fla. 4th DCA 2005).

Florida’s constitutional and statutory homestead protections are robust. With regard to the real property, the protection is found in the Florida Constitution which provides that “[tjhere shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon ... the following property owned by a natural person ... (1) a homestead .... ” Art. X, § 4(a)(1), Fla. Const.

Generally, this homestead protection can only be breached in limited situations:

1) government entities with a tax lien or assessment on the property;
2) banks or other lenders with a mortgage on the property which originated from the purchase of the property; and
3) creditors with liens on the property which originated from work or repair performed on the property.

Art. X, § 4(a), Fla. Const.

The Former Wife argues that a fourth exception, alimony creditors, has long been recognized. We agree. See, e.g., Anderson v. Anderson, 44 So.2d 652 (Fla. 1950); Wilbur v. Wilbur, 981 So.2d 1252 (Fla. 2d DCA 2008); Partridge, 912 So.2d at 649; Siegel v. Siegel, 700 So.2d 414 (Fla. 4th DCA 1997); Gepfrich v. Gepfrich, 582 So.2d 743 (Fla. 4th DCA 1991).

The exception relating to alimony creditors is founded upon our supreme court’s conclusion more than one hundred years ago that the homestead protections “should not be so applied as to make it an instrument of fraud or imposition upon creditors.” Pasco v. Harley, 73 Fla. 819, 75 So. 30, 32 (1917) (citations omitted). Even earlier, the court held “that the provisions of the homestead laws should be carried out in the liberal and beneficent spirit in which they were enacted, but care should be taken at the same time to prevent them from becoming the instruments of fraud.” Drucker v. Rosenstein, 19 Fla. 191, 199 (1882). Building on that understanding of the homestead protections, in Anderson the court held that the homestead exemption cannot “be construed to enable the husband to claim its benefit against the very persons , to whom he owes the obligation of support and maintenance, and that to construe the statute otherwise, would, at least in part, defeat its avowed object.” 44 So.2d at 655.

The broad holding in Anderson has’ since, been clarified and the forced sale of homestead property is permitted when the former spouse claiming the homestead protection acted egregiously, reprehensible or fraudulently. Partridge, 912 So.2d at 649. In those cases, we have unambiguously .held that the circuit court has “the legal authority to foreclose the lien.” Id. at 650. We have also affirmed a court’s refusal to recognize the homestead exemption when the former spouse “attempt[s] to use the homestead exemption law as an instrument to defraud his former wife and to escape his honest debt to her.” Gepfrich, 582 So.2d at 744. Thus, based on our controlling case law, the homestead protection does not shield a former spouse when he or she acts egregiously, reprehensibly, or fraudulently.

A similar result is required with regard to other exemptions. In Siegel; we held that an “IRA is not a safe haven where a former spouse can hoard assets while, at the same time, argue that he does not have the present ability to pay a purge amount in a contempt order arising from the nonpayment of obligations due under [Chapter 61].” 700 So.2d at 415. In that case, we explained that “because a person can obtain access to funds in an IRA account, a trial court may properly look to that- account as a source of funds to satisfy a purge amount in a contempt order.” Id.

As with the IRA account in Siegel, in this case the Circuit court may properly look to the insurance policy. The protection for the insurance policy is statutory, not constitutional. See § 222.14, Fla. Stat. (2015). However, the statutory protection is not absolute. Section 222.29, Florida Statutes (2015), removes -the statutory protection if the exemption results from - a fraudulent transfer or conveyance as provided in chapter 726. Similarly, section 222.30, Florida Statutes (2015), removes property from the statutory exemption if a conversion by the debtor resulted in the property becoming exempt. The law is clear that the exemptions clearly do -not apply when they are being used for a fraudulent purpose. -

Based upon the exceptions to the homestead protection found in the cases cited above, and upon the statutory exceptions to the insurance exemptions, we find the trial court erred in its conclusion that the real property and insurance policy could not be reached under any circumstance;

The Former Wife also urges us to find that these transfers amounted to fraud. The invitation is enticing for a number of reasons, two of which we note. First, the Former Husband testified that the assets he transferred to the New Wife were his largest assets and constituted the only assets to which the Former Wife could ever look in order to collect her , alimony. Second, the New Wife testified that these transfers occurred “’cause my husband and his lawyer were speaking about he would have to give his ex-mfe some kind ofmoney.”

■Even though the conclusion seems clear and reaching this conclusion would preserve the court’s limited resources, it 4s a conclusion we decline to reach in the first instance. See State Farm Mut. Auto Ins. Co. v. Lawrence, 65 So.3d 52, 56 (Fla. 2d DOA 2011). Therefore, on remand the circuit court shall conduct appropriate proceedings and make findings , regarding whether the Former Husband “acted either egregiously, reprehensibly, or fraudulently so as to justify a forced sale of the homestead.” Partridge v. Partridge, 790 So.2d 1280, 1284 (Fla. 4th DCA 2001). If the court finds such behavior, the court shall exercise its authority-over the real property and insurance policy and may force a sale,

Conclusion

The court erred in its conclusion that the transfer of the real property and insurance policy could not be fraudulent as a matter of law due to constitutional and statutory exemptions. - We reverse the court’s order denying proceedings supplementary and remand with instructions to conduct appropriate proceedings in order to determine if the Former Husband acted either egregiously, reprehensibly, or fraudulently so as to justify a forced sale of the protected property.,

Reversed md remanded mth instructions.

Ciklin, C.J., and Gross, J., concur.

ON MOTION FOR CLARIFICATION, REHEARING, AND/OR RECONSIDERATION

The Former Wife moves for clarification, rehearing, and/or reconsideration of our order denying her motion for appellate attorney’s fees and costs. We grant the motion for clarification and deny the'motions for rehearing and reconsideration.

. Prior to our disposition of the underlying appeal, the Former Wife timely moved for appellate attorney’s fees and costs. She cited to section 61,16, Florida Statutes and Florida Rule of Appellate Procedure 9.400 as the basis for her entitlement, an entitlement which she made contingent on her prevailing in the appeal. In the “Wherefore” clause of her motion, she asked that attorney’s fees and costs be taxed against the Former Husband’s new spouse, not the Former Husband.

At the time we issued our opinion reversing the court’s order, we also issued a separate order denying her motion for attorney’s fees and costs. The Former Wife now seeks reconsideration of our order. She argues that, because she “is considered the prevailing party in this appeal,” and because Rule 9.400(a) “provides that appellate costs (and fees) shall be taxed in favor of the prevailing party,” she is entitled to attorney’s fees and costs pursuant to sections 66.29 and 61.16, Florida Statutes (2016).

It is true that a party may be entitled to appellate attorney’s fees from a former spouse pursuant to section 61.16, Florida Statutes (2016). Section 61.16, however, is not a prevailing party fee statute, “Instead, it bases a claim for attorney’s fees on the financial resources of the parties ‘unless the appellate party’s cause is deemed to be frivolous.’ ” Rados v. Rados, 791 So.2d 1130, 1133 (Fla. 2d DCA 2001) (quoting § 61.16(1), Fla. Stat. (1999)); see also Schneider v. Schneider, 32 So.3d 151, 156 (Fla. 4th DCA 2010).

To comply with the statute and the requirements of Rule 9.400(b), when a party seeks attorney’s fees in a domestic relations case, the motion should include a statement as to the relative need and financial circumstances of the parties. The Former Wife did not address the need or financial circumstances in her motion for attorney’s fees or her motion for reconsideration, instead focusing on her status as prevailing party.

However, we did not deny the Former Wife’s motion because she was not the prevailing party, as there is no doubt that she was the prevailing party. Nor was the motion denied for her failure to include a statement regarding the need and financial resources of the parties to the dissolved marriage.

We denied the Former Wife’s motion because she sought fees against Ellen Spector, the Former Husband’s new spouse. Section 61.16, Florida Statutes (2016), provides for the award of attorney’s fees against a former spouse, not the new spouse of a former spouse. In other words, the motion for attorney’s fees was deficient regardless of the result of the appeal or the relative need of the Former Wife and Former Husband.

In her motion for reconsideration, the Former Wife added an alternative basis for the award of attorney’s fees, section 56.29, Florida Statutes (2016). As noted in the Former Husbánd’s response to the motion for reconsideration, the Former Wife waived this argument by failing to raise it as a basis for the award of attorney’s fees in her motion for attorney’s fees.

Even if the argument had not been waived, the statute does not provide a basis for an award of attorney’s fees against the Former Husband’s new spouse. The relevant portion of that statute provides that “Reasonable attorney fees may be taxed against the judgment debtor.” § 56.29(8), Fla. Stat. (2016). We have held that an analysis of chapter 56 demonstrates that attorneys fees, if awarded, are to be assessed against the judgment debtor,” not the impleaded third party. Rosenfeld v. TPI Intern. Airways, 630 So.2d 1167, 1169 (Fla. 4th DCA 1993). The Second District recently reaffirmed this bar against the award of fees or costs against the impleaded third party. Destination Boat Clubs, Inc. v. Island Breeze Boat Club & Rental Inc., 226 So.3d 301, 2017 WL 2491564 (Fla. 2d DCA June 9, 2017) (quoting Kingston Corp. Grp. of Fla. v. Richard Kleiber Walter Kleiber P’ship, 127 So.3d 802, 804 (Fla. 2d DCA 2013) (“[Ijmpleaded parties are not liable for attorney’s fees and costs in ... proceedings supplementary. In such proceedings, attorneys fees and costs may be awarded only against the original judgment debt- or—not against any impleaded parties.”)). In this case, the Former Husband is the judgment debtor, not the Former Husband’s new spouse.

Finally, the Former Wife also argues that we erred in denying her motion for costs. She argues that “Florida Rule of Appellate Procedure 9.400(a) provides that appellate costs (and fees) shall be taxed in favor of the prevailing party.” Of course, Rule 9.400(a) does not provide that both appellate costs and fees shall be taxed. Rule 9.400(a) applies exclusively to costs, not attorneys fees. However, unless we specifically state otherwise, our denial of a motion to tax appellate costs filed in this court is presumed to be without prejudice to refile the motion in the circuit court. Bernstein v. New Beginnings Tr., LLC, 2 So.3d 346, 347 (Fla. 4th DCA 2008). Therefore, because we did not specifically state otherwise, our denial of the Former Wife’s motion for appellate costs is without prejudice. Nationstar Mortgage LLC v. Glass, 219 So.3d 896, 2017 WL 2664696 (Fla. 4th DCA June 21, 2017) (en banc) (citing Fla. R. App. P. 9.400(a)) (denying the movant’s request for appellate costs without prejudice as a request for costs is not properly presented to the appellate court”). As in Glass, we make no determination that there are, or are not, any costs to be taxed should such a motion be timely filed in the circuit court. See Fla. R. App. P. 9.400(a); § 56.29(8), Fla. Stat.

The Former Wife’s motion for appellate attorney’s fees is denied, and her motion for costs is denied without prejudice. This result may have been different had the Former Wife sought attorney’s fees against the Former Husband. Instead, she sought attorney’s fees against the Former Husband’s new spouse. To that, she is not entitled.

Motion for clarification granted; motions for rehearing and reconsideration denied.

      . Spector v. Spector, 226 So.3d 256, 2017 WL 2264636 (Fla. 4th DCA May 24, 2017).


author: LaROSE, Judge.

text:
    ALLSTATE INDEMNITY COMPANY, Appellant, v. MARKLEY CHIROPRACTIC & ACUPUNCTURE, LLC, as assignee of Ilene Chavez, Appellee. Allstate Insurance Company, Appellant, v. Diagnostic Imaging Consultants of St. Petersburg, P.A. as assignee of Yosley Gonzalez, Appellee.
    Nos. 2D14-3818, 2D14-6058.
    District Court of Appeal of Florida, Second District.
    March 30, 2016.

      Anthony J. Parrino of Reynolds Parrino Spano & Shadwick, P.A., St. Petersburg; and Peter J. Valeta of Meckler Bulger Tilson Marick & Pearson LLP, Chicago, Illinois; for Appellant.
    Michael R. Bray and David M. Calderil-la of de la Parte & Gilbert, P.A., Tampa; and Daniel Gutierrez of Daniel Gutierrez, P.A., Orlando, for Appellee Markley Chiropractic & Acupuncture, LLC.
    David M. Calderilla of de la Parte & Gilbert, P.A., Tampa; and Lorca J. Divale of The Physician Collections Group, P.A., Tampa, for Appellee Diagnostic Imaging Consultants of St. Petersburg, P.A.
   LaROSE, Judge.

Allstate Indemnity Company -and Allstate Insurance Company, (collectively, Allstate) appeal the trial court’s final summary judgments in favor of Markley Chiropractic & Acupuncture, LLC (Markley), as assignee of llene Chavez, and Diagnostic Imaging Consultants of St. Petersburg, P.A.' (Diagnostic), as. assignee of Yosley Gonzalez. Markley and Diagnostic each sued Allstate for payment of Personal Injury Protection (PIP) insurance benefits.

The' trial court in each case certified to us, asa matter-of great public importance, the following question:

Does' a PIP policy that éxpressly states that “any amounts payable under this coverage shall be subject to any and all limitations authorized by Fla. Stat. § 627.736, or any other provisions of the Florida Motor Vehicle No-Fault Law, as enacted, amended or otherwise continued in the law, ... including, but not limited to, all fee schedules,” clearly and unambiguously notify the insured of the methodology the insurer -will apply in limiting reimbursement of PIP benefits?

See Fla. R.App. P, 9.030(b)(4)(A), 9.160(d). Because the trial court erred in granting final summary judgments against Allstate, we reverse.

The facts are straightforward and not in serious dispute. Allstate issued separate automobile insurance policies, with PIP benefits, to Ms. Chavez and to Mr. Gonzalez. While the policies were in effect, each insured was involved in a motor vehicle accident. They suffered injuries that were covered under the PIP portion of their respective policies. Markley treated Ms, Chavez; Diagnostic treated Mr. Gonzalez. Each insured received services that were reasonable, medically necessary, related to the subject accidents, and covered by their policies. Each executed a valid assignment of benefits to their respective medical-service provider. The assignments enabled Markley and Diagnostic to bill and receive payment directly from Allstate for the services they rendered to each insured. Allstate paid PIP benefits, but not in the amounts sought by Markley and by Diagnostic.

Markley and Diagnostic each sued Allstate for breach of contract, alleging that Allstate failed to pay the full amount of benefits required by the policies and by section 627.736, Florida .Statutes (2010). The legal issue before us is important; the financial stakes are slight. The combined unpaid benefits in controversy are less than $264. Markley billed Allstate $8622 and Diagnostic billed $165. They argue that, under the reasonable-expenses provisions of the policies and section 627.736(1), Allstate should have paid them eighty percent of the billed amounts, $2817.60 and $132. Allstate claims that it correctly paid $2628.44 and $57.74 under the alternative fee-schedule provisions of section 627.736(5)(a)(2)(f) and the policy endorsements set forth below.

Section 627.736 provided, in pertinent part, as follows:

(1) REQUIRED BENEFITS.—Every insurance policy ... shall provide personal injury protection to the named insured ... as follows:
(a) Medical benefits,—Eighty percent ' of all reasohable expenses for medically necessary medical ... services,
(5) CHARGES FOR TREATMENT OF INJURED PERSONS,—
(a) 1. Any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered .... With respect to a determination of whether a charge ... is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical.fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply. •
2. The insurer may limit reimbursement to 80 percent of the following schedule of mammum charges:
f. For all other medical services, supplies, and care, 200 percent of the allowable amount' under the participating physicians schedule of Medicare Part B. ,..

(Emphasis added.)

The PIP portion of each policy included the following provision reflecting the language of section 627.736(1):

Allstate will pay to or on behalf of the injured person the following benefits:
1. Medical Expenses
Eighty percent of all reasonable expenses for medically necessary medical ... services....

But, an endorsement in each policy added the following provision, consistent with limitations contained in section 627.736(5)(a)(2):

Any amounts payable under this coverage shall be subject to any and all limitations, authorized by section 627.736, or any other provisions of the Florida Motor Vehicle No-Fault Law, as enacted, amended or otherwise continued in the law, including but not limited to, all fee schedules.

In both cases, the parties agreed that the sole legal issue for resolution by the trial court was whether Allstate’s policy language permitted it to limit reimbursement according to the Medicare fee schedule of maximum charges described in section 627.736(5)(a)(2)(a)-(f).

Relying, as they did in the trial court, on Geico General Insurance Co. v. Virtual Imaging Services, Inc., 141 So.3d 147 (Fla. 2013), Markley and Diagnostic argue that Allstate’s policy language was ambiguous and insufficient to permit application of the endorsement’s reimbursement limitation. In Virtual Imaging, the supreme court held that subsections 627.736(5)(a)(l) and (5)(a)(2) describe distinct methodologies for the insurer to determine a reasonable charge for medical services. Virtual Imaging, 141 So.3d at 156-58. The first method, described in section 627.736(5)(a)(l), determines reasonableness by “a fact-dependent inquiry determined by consideration of various [enumerated] factors,” Virtual Imaging, 141 So.3d at 155-56.

Alternatively, under section 627.736(5)(a)(2), reasonableness is determined “by reference to the Medicare fee schedules.” Virtual Imaging, 141 So.3d at 156. Use of these fee schedules predetermines “reasonable expenses” for covered services. This predetermination promotes a key purpose of the PIP statute, to provide “swift and virtually automatic payment” of benefits. See Ivey v. Allstate Ins. Co., 774 So.2d 679, 683-84 (Fla.2000) (quoting Gov’t Emps. Ins. Co. v. Gonzalez, 512 So.2d 269, 271 (Fla. 3d DCA 1987)).

As here, the dispute in Virtual Imaging focused on the insurer’s reliance on subsection (5)(a)(2)(f) to limit reimbursement to “200 percent of the allowable amount under the participating physicians schedule of Medicare Part B.” See Virtual Imaging, 141 So.3d at 156 (quoting § 627.736(5)(a)(2)(f)). The policy in Virtual Imaging provided that the insurer would pay PIP benefits of eighty percent of all reasonable expenses for medically necessary medical services “in accordance with, and subject to the terms, conditions, and exclusions of the Florida Motor Vehicle No-Fault Law, as amended.” See id. at 157-58.

“[T]he policy did not reference the permissive Medicare fee schedule method of calculating reasonable medical expenses” to notify its insured and providers “regarding the amount of PIP coverage the insurer will provide.” Id. at 158. Consequently, the supreme court held that the insurer could not rely on the alternative method to limit PIP reimbursements. Id. The court rejected the insurer’s argument that it incorporated the fee schedules by general reference to “the Florida Motor Vehicle No-Fault Law, as amended.” Id. To take advantage of the Medicare fee schedules, the insurer must, in its policy, elect to use the permissive fee-schedule calculation method. Id.

Virtual Imaging is not as' convincing as Markley and Diagnostic urge. The Allstate policies before us specifically provide that “[a]ny amounts payable under this coverage shall be subject to any and all limitations, authorized by section 627.736, or any other provisions of the Florida Motor Vehicle No-Fault Law, ... including but not limited to, all fee schedules.” (Emphasis added.) The trial court found that this language did not “constitute a [clear and unambiguous] valid notice of intent to select a specific methodology of reimbursement.” Seemingly, the trial court understood Virtual Imaging to require an express and specific election of the Medicare fee schedules or section 627.736(5)(a)(2)-(5).

We must agree with Allstate that the trial court misapplied Virtual Imaging. Allstate provided notice of its election to use the alternative method of benefit calculation, stating in the policy endorsement that “[a]ny amounts payable under this coverage shall be subject to any and all limitations, authorized by section 627.736, or any other provisions of the Florida Motor Vehicle No-Fault Law, as enacted, amended or otherwise continued in the law, including but not limited to, all fee schedules.” (Emphasis added.) As the Miami-Dade Circuit Court recently remarked, “[g]iven that the No-Fault Act does not provide any other fee schedules apart from those contained in subsection (5)(a)(2), said language is devoid of ambiguity.” Excellent Health Servs., Corp. v. United Auto. Ins. Co., No. 13-2221 SP 24(01), 2014 WL 2516476, at *3 (Fla. 11th Cir.Ct. June 3, 2014). We, too, conclude that Allstate’s policy language unmistakably makes reimbursements subject to the Medicare fee schedules. See Allstate Fire & Cas. Ins. v. Stand-Up MRI of Tallahassee, P.A., 188 So.3d 1, 2, 2015 WL 1223701 (Fla. 1st DCA Mar. 18, 2015); but see Orthopedic Specialists v. Allstate Ins. Co., 177 So.3d 19, 21 (Fla. 4th DCA 2015) (finding identical policy language “inherently unclear”; certifying conflict -with StandUp MRI).

We do not quarrel with Virtual Imaging's holding that notice to the provider is required. However, Virtual Imaging did not dictate a form of notice. S. Fla. Wellness, Inc. v. Allstate Ins. Co., 89 F.Supp.3d 1338, 1341 (S.D.Fla.2015). It seems clear to us that “Virtual Imaging requires no other magic words from Allstate’s policy and its simple notice requirement is satisfied by Allstate’s language limiting ‘[a]ny amounts payable’ to the fee schedule-based limitations found in the statute.” StandUp MRI, 188 So.3d at 3, 2015 WL 1223701 at 2; see Excellent Health Servs., 2014 WL 2516476, at *3 (“Virtual Imaging does not require insurers to specifically state the word ‘Medicare.’ ”). “Allstate leaves no wiggle room as to whether fee limitations may be utilized—both providers and insured are on notice that ‘all fee schedules’ ‘shall’ be applied.” S. Fla. Wellness, 89 F.Supp.3d at 1341.

Allstate’s policy language gave its insureds, and their respective medical-care providers, legally sufficient notice, as required by Virtual Imaging, of its election to use the Medicare fee schedules. Accordingly, we answer the certified question in the affirmative, reverse the trial court’s orders granting summary judgment against Allstate, remand these cases for further proceedings, and certify conflict with Orthopedic Specialists, 177 So.3d 19.

Reversed and remanded for further proceedings consistent with this opinion; certified question answered; conflict certified.

VILLANTI, C.J., and SALARIO, J., Concur.

      . We agreed to hear these cases and exercise our jurisdiction under Florida Rule of Appellate Procedure 9.030(b)(4)(A) (pass-through from county court).

      . The legislature amended section 627.736. Ch. 2012-197, § 10, at 2737-56, Laws of Fla. Among other changes, the amendment renumbered subsections so that sections (5)(a)(l) and (5)(a)(2)(f) above, applicable here, became sections (5)(a) and (5)(a)(l)(f), respectively, See id.


author: LOGUE, J.

text:
    U.S. BANK NATIONAL ASSOCIATION, etc., Appellant, v. Richard VAIR, et al., Appellees.
    No. 3D15-1891
    District Court of Appeal of Florida, Third District.
    Opinion filed March 29, 2017.
    Burr & Forman, LLP, and Nicholas S. Agnello and Christine Irwin Parrish (Fort Lauderdale), and Reid S. Manley (Birmingham, AL), for appellant.
    Richards Goldstein LLP, and Richard L. Richards, Jason Goldstein, and Joshua Sa-val, for appellees.
    Before WELLS, LAGOA, and LOGUE, JJ.
   LOGUE, J.

This is an appeal from a judgment in a foreclosure case entering attorney’s fees for the borrowers and against the lender. Because the judgment for the borrowers in the underlying foreclosure action has been reversed by this court in U.S. Bank National Association v. Vair, 194 So.3d 544 (Fla. 3d DCA 2016), on the authority of Deutsche Bank Trust Co. Americas v. Beauvais, 188 So.3d 938 (Fla. 3d DCA 2016), the related judgment at issue in this appeal awarding attorney’s fees and costs to the borrowers must also be reversed.

Reversed and remanded.


author: PER CURIAM.

text:
    Spencer BAKER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-5500
    District Court of Appeal of Florida, Second District.
    Opinion filed March 31, 2017.
    Spencer Baker, pro se.
    Amanda Peterson of Law Offices of Peterson, P.A., Mulberry, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   ORDER ON APPELLANT’S MOTION FOR REHEARING

PER CURIAM.

The Motion for Rehearing filed in case number 2D15-5500 by the pro se Appellant, Spencer Baker, is granted. Accordingly, the per curiam opinion filed January 18, 2017, is withdrawn and the mandate issued on February 21, 2017, is recalled. Amanda Peterson, appointed counsel for Appellant, shall provide the complete record, including supplements, to him within twenty days of this order, and she shall certify to this court in wilting that she has done so. The pro se Appellant shall have sixty days from the date of this order to file an initial brief and to serve a copy on the Attorney General at 3507 E. Frontage Road, Suite 200, Tampa, FL 33706-7013.

NORTHCUTT, KHOUZAM, and SALARIO, JJ„ Concur.


author: Gross, J.

text:
    David Wayne CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-3132
    District Court of Appeal of Florida, Fourth District.
    April 26, 2017
    Order Denying Rehearing June 21, 2017

      Antony P. Ryan, Regional Counsel, and Richard G. Bartmon, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fourth District, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.
   Gross, J.

Appellant was convicted of sexual activity with a child and battery of a child. We write primarily to explain why the rule of completeness did not compel admission of his exculpatory post-arrest station house statement after the state introduced a tape of a controlled phone call between the victim and appellant.

Appellant was romantically involved with the victim’s mother. He moved in with the mother and her family when the victim was 10 or 11. When she was 17, the victim disclosed to a school counselor that, for five years, she had been sexually abused by appellant.

The controlled call

Law enforcement was contacted and a detective arranged to record a controlled call between the victim and appellant. The recording was played for the jury during the detective’s testimony. Pertinent parts of the call are set forth below.

Victim: I just can’t get over what has happened between me and you. And I don’t know how to get over it.
Appellant: Well, me and you—what are you talking about, like last night or the night before?
Victim: No, like having sex.
Appellant: Well, why don’t we talk about this tonight, you can’t just make it through today?
Victim: ... I can’t stop thinking about it and I can’t calm down. And I don’t have my medicine—
Appellant: Well, you left this morning fine. What—what are you—what is going on that you can’t—I just—
Victim: Because this one girl was talking about her [redacted]. And then it just triggered me. And I can’t stop thinking about it. Like I don’t—I don’t know, I can’t stop thinking about it. I can’t get over it. I just—I just want to know why. Is it because I’m not your kid, like—
Appellant: No, [Victim] and I really can’t talk to you on the phone. And I feel bad. Let me go—I’ll tell you (unintelligible) know I need to run over to your school. And I’ll come over there and we’ll talk.
... you also have to understand and take some responsibility on your own too. It’s like you’re hitting me with this stuff, and it’s like—you act like you have no clue.
Victim: Is it my fault why you had sex with me?
Appellant: No, [Victim] quit punishing yourself.
[Victim says she think she might be pregnant]
Victim: Did you always wear a condom though?
Appellant: [Victim] can we talk about this later? I feel like you’re setting me up because you start talking on the phone because somebody is listening or recording you.
Victim: But I don’t want to tell the police.
Appellant: Well, don’t tell the police. If you tell the police, [Victim] everything is over. Your brother and sister, whatever would have come of them for sure is done. Your mother can’t afford them, nothing like that. I’m done. I’m going to go to prison for the rest of my life. And then where are you going?
Victim: ... I just want to know why you had sex with me. That’s [unintelligible] reason. I’m always thinking about it. I always blame myself. And I feel so disgusting about myself. And I feel like I did something wrong.
Appellant: You didn’t do anything wrong, [Victim], other than—the only thing I know of that I can tell you where you went—where you went wrong on your part is, is you wanted to do something, okay, and you wouldn’t take no for an answer. You insisted on it.
And then now that you’ve gotten older you’re like what the f* * *, now I feel dirty and stuff like that. And it’s like, well, from the time that that happened up until now, why didn’t you do this years ago?

Appellant was arrested the same day the call took place. During station house questioning by a detective, appellant contends that “he denied having sexual relations or contact with [the victim] sixteen times.”

The rule of completeness did not require admission of appellant’s station house statements along with the controlled call

Appellant argues that, under the rule of completeness, his statement to the police, made later the samé day as the controlled call, should have been admitted right after the recorded telephone conversation with the victim. .

The rule of completeness does not apply here because appellant’s exculpatory statements to the detective do not clarify or shed light on his statements made to an entirely different listener, the victim in the controlled call. The rule has been applied to different parts of the same statement; at its most extreme, it has been applied to related statements to the same person.

Typically at trial, a defendant’s statement during police interrogation is hearsay; it is a statement “other than one made by the [defendant] while testifying at the trial ,.. offered in evidence to prove the truth of the matter asserted.” § 90.801(l)(c), Fla. Stat. (2014). When offered by the state, a defendant’s out-of-court statement falls under the admission exception to the rule against hearsay—it is offered “against” the defendant and is his own statement. § 90.803(18)(a), Fla. Stat. (2014). A defendant’s attempt to offer his own statement claming innocence during police questioning usually runs afoul of the rule against hearsay. The admission exception does not apply because the defendant is not offering it “against” a party, but to buttress his own case. See Calloway v. State, 210 So.3d 1160, 1183 (Fla. 2017) (“Self-serving hearsay statements are generally inadmissible.”). This application of the rule against hearsay often requires a defendant to take the witness stand if he wants to tell his story, where he is subject to cross-examination.'

■ Appellant sought to admit his prior statements under the rule of completeness, codified at section 90.108(1), Florida Statutes (2014), which provides in pertinent part:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him or her at that time to introduce any other part or any other writing or recorded statement that in fairness ought to be considered contemporaneously.

(Emphasis added).

The purpose of the statute is to “avoid the potential for creating misleading impressions by taking statements out of context.” Larzelere v. State, 676 So.2d 394, 401 (Fla. 1996). As the Florida Supreme Court has explained,

Fairness is clearly the focus of this rule. Thus, when a party introduces part of a statement, confession, or admission, the opposing.party is ordinarily entitled to bring out the remainder of the statement. This rule is not absolute, and the correct standard is whether, in the interest of fairness, the remaining portions of the statements should have been contemporaneously provided to the jury.

Ramirez v. State, 739 So.2d 568, 580 (Fla. 1999) (internal citations omitted). Ramirez describes the most common fact pattern, where - a party offers, only a portion of a statement and his opponent seeks admission of other parts of the same statement under the rule .of completeness.

Appellant focuses on the plain language of section 90.108(1), which allows not just omitted parts of the same statement, but also' “any other writing or recorded statement that in fairness ought to be considered contemporaneously” with the statement already introduced in evidence.

In practice, the statute has never been given the broad application urged by appellant. Taken-to its extreme, such a reading would require the contemporaneous admission of any written or recorded statement that might cast light on an admitted statement. Using the language of section 90.108(1), “fairness” does not require turning a trial into a voyage on a sea of hearsay.

In practice, when the statute has been applied to require the contemporaneous admission of “other” writings or recorded statements, all the statements or conversations are between the same parties.

For example, in Kaezmar v. State, the state played an edited version of recorded conversations between the defendant and an undercover detective, during which the defendant thought the detective would help him frame someone else for a murder. 104 So.3d 990, 1000 (Fla. 2012). Eliminated from this edited version, were the defendant’s statements where he said that he was framing someone else because he was innocent. Id. The rule of completeness required the contemporaneous admission of these statements. Id. Thus, although Kaez-mar involved separate conversations, the separate conversations were between the same two persons.

Similar to Kaczmar, Johnson v. State involved two statements of a defendant in a manslaughter case—one immediately after his arrest and another in a “formal statement” at the police station where he claims self defense. 653 So.2d 1074, 1075 (Fla. 3d DCA 1995).'Because the opinion uses the terms “police officer” and “detective” interchangeably, it appears that the same officer heard both statements, distinguishing that case from this one. The third district held that section 90.108 allowed the defendant to question the .“detective/officer” about the formal statement after “the State had introduced [the defendant’s] first, informal statement.” Id. Although the two statements were separated by a short period of time, they were arguably part of a continuous process of interrogation. Johnson is consistent with cases applying section 90.108(1) to require, admission of the portion of a defendant’s statement relating to a defense to criminal charges. See Metz v. State, 59 So.3d 1225, 1227 (Fla. 4th DCA 2011).

Unlike Kaezmar and Johnson, the statements made by appellant during the controlled call were to the victim. And the statements later made by appellant, where he protested his innocence, occurred during his interrogation by the police. The two statements “were made to different persons in different settings and could not be viewed as a single continuous narrative or process of interrogation.” People v. Hubrecht, 2 A.D.3d 289, 769 N.Y.S.2d 36, 37 (2003). The trial court did not err in' refusing to admit the station house statements shortly after the tape of the controlled phone call with the victim.

We also reject appellant’s argument that the rule of completeness allowed him to introduce certain exculpatory station house statements after the state used a different portion of that statement to impeach appellant on cross-examination. We agree with the trial court that the portions appellant sought to admit were not related to the portions used for impeachment, so "they did not “explain or shed light upon" the p'árt already admitted.” Charles W. Ehrhardt, Florida Evidence § 108.1, at 55-56 (2006 ed.).

No error in sentencing has been demonstrated.- Tragically, the victim committed suicide between the trial and the sentencing hearing. At trial she testified that she had tried to commit suicide because she “felt disgusting and like nothing” and thought suicide would take her away from the situation. The suicide attempt led her, several weeks later, to tell her counselor about the abuse. “A statement regarding the extent of the victim’s loss or injury" is a permissible factor to consider at sentencing. § 921,231(l)(n), Fla. Stat. (2014). The victim’s suicide demonstrated the extent of her psychological injury. It was therefore appropriate for the sentencing judge to consider the testimony concerning the victim’s suicide at the sentencing hearing.

Affirmed.

Ciklin, C.J., and Kuntz, J., concur.

ON MOTION FOR REHEARING

We deny the motion for rehearing, but write to distinguish a recent Florida Supreme Court case and to further discuss the application of section 90.108(1), Florida Statutes (2015).

One day after our panel opinion issued, the Florida Supreme Court released Tundidor v. State, No. SC14-2276, 221 So.3d 587, 2017 WL 1506854 (Fla. Apr. 27, 2017), where it approved a trial court’s ruling allowing the introduction of a witness’s deposition testimony contemporaneously with that same witness’s testimony from an earlier, separate Arthur hearing. The court explained the rule of completeness “is not limited to situations where statements are taken out of context,” and that the plain language of section 90.108 allows a party to seek the introduction of other statements when “fairness” requires that those statements be considered contemporaneously with other statements. Id. at 599, 2017 WL 1506854 at *7.

Appellant relies on Tundidor to argue that his post-arrest exculpatory statement to a detective should have been introduced contemporaneously with the controlled call between appellant and the victim.

We reaffirm our holding that because appellant’s post-arrest statement neither explained nor clarified the controlled call, the introduction of the controlled call, when viewed in isolation, did not create a misleading impression. Fairness thus did not require the contemporaneous introduction of the post-arrest exculpatory statement.

Florida’s rule of completeness, originally enacted in 1976, provides:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him or her at that time to introduce any other part or any other writing or recorded statement that in fairness ought to be considered contemporaneously.

§ 90.108(1), Fla. Stat. (2015). The federal rule is similar. See Fed. R. Evid. 106 (“If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time.”).

Under the section 90.108(1) rule of completeness, “once a party ‘opens the door’ by introducing part of a statement, the opposing party is entitled to contemporaneously bring out the remainder of the statement in the interest of fairness.” Larzelere v. State, 676 So.2d 394, 401-02 (Fla. 1996).

The origins of the rule go back to the sixteenth century and the focus was on different parts of the same writing or statement. See Barbara E. Bergman & Nancy Hollander, Wharton’s Criminal Evidence § 4:10 (15th ed. 1997). Lord Chief Justice Charles Abbott recognized the danger in admitting only a portion of a conversation in evidence, explaining “one part taken by itself may bear a very different construction and have a very different tendency to what would be produced if the whole were heard, for one part of a conversation will frequently serve to qualify and to explain the other.” Id. (quoting Thomson v. Austen, 2 Dowl. & R. 358, 361 (1823)).

A “classic example of the possibilities of distortion” when a portion of a statement is omitted is where one mentions only the last phrase of the bible quote, “The fool hath said in his heart, there is no God.” McCormick on Evidence § 56 (Kenneth S. Broun, et al. eds., -6th ed. 2006) (citing 7 John H. Wigmore, Evidence in Trials at Common Law § 2094 (Chadbourn rev. 1978)). Quoting the Bible as saying “there is no God,” would “be a misleading half-truth because it divorces the quotation from its context.” Id. Thus, the purpose of the rule of completeness “is to ensure that a misleading impression created by taking matters out of context is corrected on the spot.” Bergman & Hollander, supra.

This purpose was reflected in the common law rule of completeness which provided that,

“the opponent, against whom a part of an utterance has been put in, may in his turn complement it by putting in the remainder, in order to secure for the tribunal a complete understanding of the total tenor and effect of the utterance.” 7 J. Wigmore, Evidence in Trials at Common Law § 2113, p. 653 (Chadbourn rev. 1978); see also Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988) (quoting this passage while discussing the rule of completeness). In addition to ensuring that a court has an accurate representation of a declarant’s statement, the rule guards against “the danger that an out-of-context statement may create such prejudice that it is impossible to repair by a subsequent presentation of additional material.” Beech Aircraft Corp., 488 U.S. at 172 n.14, 109 S.Ct. 439.

United States v. Burns, 162 F.3d 840, 852-53 (5th Cir. 1998).

As early as 1896, the Florida Supreme Court applied the common law rule to the situation where the state offers “evidence of inculpatory statements made by the defendant, and the defendant ... seeks to show other exculpatory statements, or statements deemed exculpatory, made in the same conversation, in reference to the same subject-matter.” Thalheim v. State, 38 Fla. 169, 20 So. 938, 947 (1896) (emphasis added). The court held that in such cases “the defendant is entitled to have before the jury all that was said upon the subject upon the particular occasion, whether prejudicial or beneficial to him.” Id.; see also Bennett v. State, 96 Fla. 237, 118 So. 18, 19 (1928) (“The rule as to admissions in general is that the whole of the statement containing the admission is to be received together.”).

“Fairness is clearly the focus” of section 90.108(1). Jordan v. State, 694 So.2d 708, 712 (Fla. 1997); see also Larzelere, 676 So.2d at 401-02 (explaining when one party introduces “part of a statement, the opposing party is entitled to contemporaneously bring out the remainder of the statement in the interest of fairness.”) (emphasis added); Long v. State, 610 So.2d 1276, 1280 (Fla. 1992) (“It is well established that, when the State offers in evidence a part of a confession or admission, the accused, in the interest of fairness, is entitled to bring out the remainder of that confession or admission.”) (emphasis added); Eberhardt v. State, 550 So.2d 102, 105 (Fla. 1st DCA 1989), rev. den., 560 So.2d 234 (Fla. 1990) (explaining where the state admitted only portions of a defendant’s conversation with police, the rule allowed “admission of the balance of the conversation as well as other related conversations that in fairness are necessary for the jury to accurately perceive the whole context of what has transpired between the two.”) (emphasis added).

Because it is not limited to different parts of the same conversation or writing, section 90.108(1) is broader than the common law rule; the statute allows the adverse party to require the introduction of “any other writing or recorded statement that in fairness ought to be considered contemporaneously.” § 90.108(1) (emphasis added). “Under a plain reading of the statute, parties may seek the introduction of other statements when those statements ‘in fairness ought to be considered contemporaneously’ with the introduction of the partial statement.” Larzelere, 676 So.2d at 402 (quoting § 90.801(1)). However, the statute has not abandoned the common law notion that “fairness” requires the contemporaneous introduction of an “other” statement only if it is required to give a “complete understanding of the total tenor and effect” of the statement introduced in evidence. 7 Wigmore, supra.

Here, the state introduced a controlled call between appellant and the victim. Appellant argues that fairness compelled the contemporaneous introduction of his post-arrest statement to police made later the same day the controlled call was made, during which he repeatedly denied sexual contact with the victim. Appellant contends the admission of just the controlled call, during which he did not explicitly deny sexual contact with the victim, misled the jury because it failed to tell the whole story.

In asserting that the plain language of section 90.801 and fairness required the contemporaneous introduction of his post-arrest statement, appellant ignores a significant limitation to the rule. “The opposing party is entitled to have a portion of the writing [or other writing] introduced only insofar as it tends to explain or shed light upon the part already admitted.” Charles W. Ehrhardt, Florida Evidence § 108.1 (2006 ed.) (emphasis added). In Correll v. State, 523 So.2d 562, 566 (Fla. 1988), the court held that although “a defendant’s statement should be introduced into evidence in its entirety,” a court does not err by omitting a portion of the defendant’s statement if it is irrelevant. In the context of two separate statements, even if they refer “generally to the same events,” a court does not err in excluding the later statement if it does “nothing to explain the earlier” statement. Christopher v. State, 583 So.2d 642, 646 (Fla. 1991). The right to bring out the remainder of a statement or another statement under the rule of completeness is thus “not absolute.” Larzelere, 676 So.2d at 402.

This limitation is consistent with the purpose of the rule, which is “to avoid the potential for creating misleading impressions by taking statements out of context.” Id. at 401. For example, “[i]f one letter in a continuing correspondence between two individuals is introduced, that letter by itself may be misleading.” Ehrhardt, supra. Section 90.108(1) would allow the entire correspondence contemporaneously admissible “in order to ensure that the jury fairly perceives what has occurred.” Id. “The included material literally ‘completes’ that which the proponent introduced.” Bergman & Hollander, supra.

In Tundidor, because a particular witness was unavailable for trial, the defendant offered her five-page-long testimony from the defendant’s Arthur hearing. No. SC14-2276, at 599-600, 2017 WL 1506854 at *7. In response, the state sought to introduce the witness’s deposition testimony, “arguing that the deposition would give the jury a more complete picture as to her testimony and that the deposition-followed up on issues addressed in her Arthur hearing testimony.” Id. The trial court admits ted both the hearing and deposition testimony. Id. The supreme court. affirmed, explaining that because the Arthur hearing testimony was only five pages long, it might have provided “an incomplete impression” to the jury regarding the witness’s relationship with the defendant’s son. Id. For example, at the Arthur hearing, the witness merely mentioned she had a falling out with the defendant’s , son, but at .the deposition she added clarity to the circumstances of- that falling out. Id. “Given- the relation between the Arthur hearing and deposition testimonies,” the court held, there was no abuse of discretion in admitting the deposition testimony. Id.

In Tundidor, without the introduction of the witness’s deposition testimony clarifying the circumstances of her falling out with the defendant’s son, the jury may not have fairly perceived what occurred between them. Thus, fairness required the contemporaneous introduction of the deposition testimony because it clarified, or explained, the witness’s earlier testimony from the Arthur hearing.

Here, appellant’s post-arrest statement to police neither explained nor clarified the controlled call with the, victim. “The .jury could not have been misled as to the content of [the controlled call] by the exclusion of the [post-arrest statement].” Christopher, 583 So.2d at 646.

We noted in our original opinion that section 90.108 has never been given the broad application urged by appellant. This makes sense- because a defendant has different-interests whén-interacting with a victim of his sexual assault than when confronting a detective after his arrest. While the witness’s interest -in Tundidor remained the same from the Arthur hearing to the deposition, appellant’s interest and motivation changed dramatically once he was arrested and questioned by police. Appellant did not vehemently deny a sexual l-elationship with the victim during the controlled call because his interest was to keep her from going to the police, or, perhaps, to continue the illicit relationship. Given the different interests triggered by his arrest, appellant’s post-arrest .exculpatory statement did not complete his earlier statements made to the victim during the controlled call.- Thus, fairness did not require the contemporaneous introduction of appellant’s post-arrest statement to police with the controlled call.

The motion for rehearing is denied.

      . Some federal courts have held that under Rule 106, ‘‘[e]xculpatoiy hearsay may not come in solely on the basis of completeness.” United States v. Shaver, 89 Fed.Appx. 529 (6th Cir. 2004). This limitation on Rule 106 has been criticized by other courts and commentators. See, e.g., United States v. Sutton, 801 F.2d 1346, 1368 n.16, 17 (D.C. Cir. 1986).

      . State v. Arthur, 390 So.2d 717 (Fla. 1980).


author: SALTER, J.

text:
    Rita CLARK, et al., Appellants, v. BLUEWATER KEY RV OWNERSHIP PARK PROPERTY OWNERS ASSOCIATION, INC., Appellee.
    No. 3D16-1645
    District Court of Appeal of Florida, Third District.
    Opinion filed May 10, 2017

      Easley Appellate Practice PLLC, and Dorothy F. Easley; The Smith Law Firm, Brett Tyler Smith and Wayne LaRue Smith, for appellants.
    Lee Robert Rohe, for appellee.
    Before LAGOA, SALTER and FERNANDEZ, JJ.
   SALTER, J.

Rita Clark, Roland Clark, and David Glenz, defendants below, appeal a Final Judgment Granting Declaratory and In-junctive Relief entered against them by the Circuit Court for Monroe County in June 2016. The defendants own and control various lots within the Blue Water Key RV Ownership Park, in Saddlebunch Key. They operate a transient rental business for lots within the Park (referred to as the “Clark Rental Program”). The plaintiff below, appellee here, is Bluewater Key RV Ownership Park Property Owners Association, Inc. (“Association”), which has its own transient rental business (the “Association Rental Program”).

Earlier litigation, and much of the history of the Park, the Association, and the competing transient rental programs, are detailed in Clark v. Bluewater Key RV Ownership Park, 197 So.3d 59 (Fla. 3d DCA 2012) (“Clark' I”). Two years after Clark I, the Association and the appellants (as lot owners and operators of Bluewater Rentals), were back in the trial court on competing claims regarding the 1989 recorded Declaration of Restrictions and Protective Covenants (the “Declaration”) applicable to the Association and to all 81 lots and the common areas within the Park.

I. The Amended Complaint and the Counterclaims

The Association filed its amended complaint for declaratory and injunctive relief in October 2014 against the Clarks and Glenz, alleging that the Clark Rental Program violated the Declaration and Park Rules (enacted by the Association under Article VII, Section 14 of the Declaration). The Clark Rental Program managed some 21 rental lots for absentee owners, renting those lots to recreational vehicle owners visiting the Keys. The alleged violations included (1) the employment of workers who reside in the Park while engaged in prohibited “commercial activity” on those lots, (2) violations of Monroe County Code section 130-92(a)(l) prohibiting tenancies in excess of six months in a land use district classified as an RV Park, and (3) creating an annoyance or nuisance to other lot owners by using lots as staging areas, for stockpiling materials and supplies, and for storing equipment and tools utilized in the operation of the Clark Rental Program. The annoyance and nuisance allegations were based on complaints by lot owners regarding the noise of vehicles and transport of materials supporting the Clark Rental Program’s maintenance, repair, and rental activities.

Rita Clark and Glenz each filed counterclaims for declaratory and injunctive relief against the Association. The counterclaims alleged that the Association selectively enforced the Declaration and Park Rules in order to drive the Clark Rental Program out of business, even though the Clark Rental Program office for reservations and rental activities was operated near, but outside, the Park lots and common areas.

Rita Clark and Glenz also alleged that the Association -adopted rules to impose burdensome conditions on them (but not on the Association Rental Program) for employee background checks, and for bonding and insurance requirements. The counterclaims further asserted that the Association’s Board had been reduced from seven to three directors in contravention of the Association’s articles, such that the lawsuits initiated by the Association and other purported corporate actions were ultra vires and void. Finally, the counterclaims alleged that the Association violates its own rules, including the prohibition against “commercial activity,” in the operation of the Association Rental Program and in providing housing to employees within the Park. The declaratory and injunctive relief sought in Glenz’s counterclaim includes attorney’s fees, but not money damages. Clark’s counterclaim includes additional counts for tortious interference with advantageous business relationships and for unfair trade practices under Chapter "501, Florida Statutes (2014), the Florida Deceptive and Unfair Trade Practices Act (FDUTPA).

II. Trial and Final Judgment on the Association Claims

The trial court tried the Association’s non-jury claims for declaratory and injunc-tive relief in March 2016. Documentary evidence and testimony established that the Clark Rental Program relied on “work campers” who received the free use of a lot in return for managing repairs, lot cleanup, and acting as an in-Park contact for problems encountered by renters in the Clark Rental Program. The court found that this constituted “commercial activity” on lots within the Park in violation of the Declaration and Rules, and that the activity of the Clark Rental Program employees was also a nuisance in violation of Article VII, Section 5A of the Declaration.

After considering the affirmative defenses of the Clarks and Glenz in light of the evidence presented, the court found no basis for unclean hands, estoppel (including an estoppel alleged based on “selective enforcement in an arbitrary and capricious manner”), waiver, and laches. The court entered judgment in favor of the Association and against the defendants on the actions to enjoin a nuisance and commercial activity. The permanent injunction prohibited the defendants and those working for and through them (agents, servants, employees, etc.) from engaging in specified conduct:

a. Using any RV lot within Bluewater Park for housing employees, work campers, or anyone whose purpose is to serve in furthering Defendants’ lot rental business.
b. Using any lot as a satellite office or main office to greet guests, make reservations, accept payment for lot rentals and golf cart rentals, transact business or to store lot maintenance tools, materials, golf carts, or other vehicles regardless of whether the lot is being used as a residence or sleeping quarters.
c. Using any lot to repair or maintain equipment, appliances, furnishings, or other personal property in furtherance of Defendants’ lot rental business.
d. Violating Article VII, Section 2(h) of the Declaration of Restrictions and Protective Covenants.
e. Violating Article VII,' Section 5 of the Declaration of Restrictions and Protective Covenants.
f. Placing signs or other forms of advertising for Defendants’ rental business on Resort lots.
g. Storing or parking “work carts,” trailers, or other vehicles overnight on any lot in furtherance of Defendants’ lot rental business.

The Final Judgment stated clearly that the defendants “are not enjoined from renting their own lots” themselves or through any other property management business, so long as those activities do not violate the Declaration. The court also recognized that the process of renting the lots through any transient rental program “involves certain tasks such as, greeting and orienting renters, parking and hooking up RV’s, doing maintenance and' yardwork, and performing other related tasks. These tasks do not constitute.commercial activity as long as. done within the parameters of the- Covenants and Rules.” Recognizing that the injunction could not delineate every scenario that might arise, the court urged lot owners, Association members and officers, and the defendants to “employ common sense, reason, and courtesy when engaging in the rental process and when applying and enforcing the Covenants and Rules.”

III. Analysis

The defendants appeal the entry of the injunction on four grounds: (1) that the trial court erred by conducting a bench trial on the Association’s complaint “before the jury trial” on the counterclaims; (2) the court erred in its application of the Declaration liberally in favor of the Association and against the lot owners’ “free and unrestricted use of the lots;” (3) the injunction for “mere annoyances” is error; and (4) as the complained-of activity has been ended and there is no real likelihood of recurrence, the permanent injunction is improper or overbroad, and a “work camper” is not a “nuisance” includible in the injunction. We address these in turn.

(1) Bench Trial Before Jury Trial

As a threshold matter, our review of the record and the docket below does not reveal a demand for trial by jury by Rita Clark or Glenz in their counterclaims or other pleadings in conformance with Florida Rule of Civil* Procedure 1.430. During a hearing on September 8, 201S, on the Association’s motion for separate trials, defense counsel stated that a jury trial had been demanded, but we have not been able to locate such a demand in any pleading or docket entry.

If a timely, written demand is shown to have been made, the issues can be tried separately unless the factual issues are so interrelated that the severance of the equitable and legal claims risks inconsistent outcomes. Kavouras v. Mario City Restaurant Corp., 88 So.3d 213, 214 (Fla. 3d DCA 2011). But otherwise, the decision to sever claims and conduct separate trials pursuant to Florida Rule of Civil Procedure 1.270(b) is within the trial court’s discretion. Bethany Evangelical Covenant Church of Miami, Florida, Inc. v. Calandra, 994 So.2d 478, 479 (Fla. 3d DCA 2008).

A review of the claims and counterclaims in the present case discloses distinct, rather than intertwined, claims and issues. The Association’s claims for injunc-tive relief are pursued on behalf of all lot owners (as to the alleged “commercial activity” violations of the Declaration) and certain individual complainants occupying lots who are annoyed by noise and other disruption arising to the level of an alleged nuisance. These are classic equitable claims for the violation of restrictive covenants within a neighborhood.

The counterclaims of Glenz and Rita Clark are significantly different. Glenz seeks only declaratory relief, not money damages for tortious interference and FDUTPA violations. Some of the declarations sought by Glenz involve the lawsuits brought by the Association against Monroe County and another regarding rights to a trademark. These are not factual or legal issues intertwined with the restrictive covenant and nuisance claims.

Glenz’s other claims for declaratory relief involve the Association’s compliance with its own bylaws and articles in initiating the lawsuit against the Clarks and Glenz. A review of those claims does not reveal any issues of fact triable to a jury, however, as those issues are governed by the written documents and Chapter 617, Florida Statutes (2014), governing corporations not for profit. Each such claim was also raised as an equitable defense to the Association’s amended complaint, and (to the extent presented to the trial court) was considered.

Turning to the counterclaims of Rita Clark, Count I is essentially identical to Glenz’s counterclaim for declaratory relief, does not present factual issues as opposed to legal issues, and was considered by the trial court to the extent presented as an affirmative defense to the entry of the injunction. Count II, tortious interference with advantageous business relationships, and Count III, for alleged violations of FDUTPA, are counterclaims which seek to establish torts, unfair business practices, and statutory violations by the Association over a longer period (“over the course of the past fifteen years”) and regarding the Association’s separate rental program— not the Association’s enforcement of the restrictive covenants in the Declaration. The alleged actions by individuals in control of the Association, “motivated by malice and animosity” to “destroy Defendant Rita Clark’s Clark Rental Program” are a far more complex set of claims involving different elements of proof (including money damages) rather than compliance or non-compliance with restrictive covenants.

Expressed another way, the Association’s motivation in the enforcement of a clear legal right under the Declaration is irrelevant to the other disputes raised in the counterclaims. If Rita Clark is concerned that the Association is engaging in commercial activity on other lots or common areas in connection with the Association’s management of its rental program, and if she alleges that those activities violate the Declaration, there is no apparent impediment to her commencement of a suit for an injunction to prohibit such activities. Her counterclaims and prayers for relief, however, include no such claim for injunc-tive relief.

For these reasons, we find no abuse of discretion or legal error in the trial court’s decision to conduct a separate bench trial on the Association’s claims for injunctive relief before addressing the tortious interference and FDUTPA claims, And for the sake of emphasis, we remind the parties that those “Phase II” claims may or may not be triable to a jury, dependent on the trial court’s subsequent review of the complete docket.

(2) Construction of the Terms in the Declaration

Our consideration of this argument by the defendants/appellants is subject to de novo review. Gem Estates Mobile Home Vill. Ass’n v. Bluhm, 885 So.2d 435, 437 (Fla. 2d DCA 2004) (citing Klak v. Eagles’ Reserve Homeowners’ Ass’n, 862 So.2d 947, 954 (Fla. 2d DCA 2004)). When interpreting restrictive covenants, the courts “should give effect to the commonly understood meaning of the words of the pertinent provisions.” Gem Estates, 885 So.2d at 437. Such covenants are to be strictly construed in favor of the free use of real property, and substantial ambiguities must be construed against the party claiming the right to enforce the covenant. Washingtonian Apartment Hotel Co. v. Schneider, 75 So.2d 907, 908 (Fla. 1954) (citing Moore v. Stevens, 90 Fla. 879, 885, 106 So. 901, 904 (Fla. 1925)). However, these provisions should not be construed in a manner which defeats the intent and obvious purpose of the restriction. McMillan v. Oaks of Spring Hill Homeowner’s Ass’n, Inc., 754 So.2d 160, 162 (Fla. 5th DCA 2000).

Black’s Law Dictionary, 10th ed., defines commercial activity as an “activity, such as operating a business, conducted to make a profit.” The restrictive covenant at issue prohibits commercial activity “including the use of any lot for a home occupation or profession.” Although the Declaration and restrictive covenants are silent as to whether the lots may be rented to “work campers,” the intent of the restrictive covenant is expressed in Article VII, section 2, of the Declaration: “to maintain the RV Park as an exclusive luxury resort to be used soley [sic] for recreational vehicles ... It is the intent hereof to prohibit mobil [sic] homes and/or permanent or semi permanent structures. ...”

Clark’s and Mr. Glenz’s rental of their lots to work campers violates the restrictive covenant because that is not a recreational use, but is instead to further the for-profit Clark’s Rental Program • business. While certain tasks such as helping clients arrive at their rented lot need to occur in the Park, other tasks—such as conducting extensive repairs and allowing workers to live on and work from the lot— go beyond the provisions within the Declaration and restrictive covenants. Further, the record shows that work campers (Pete Hermansen, for example) repaired business equipment and stored tools and equipment (such as a power washer, ladder, and golf carts) on the lots. These activities assist Clark’s business and her ability to profit from the rental program; therefore, they constitute the commercial activity that the restrictive covenants clearly prohibit. Moss v. Inverness Highlands South and West Civic Ass’n, Inc., 521 So.2d 359 (Fla. 5th DCA 1988), relied upon by the Clarks and Glenz, is distinguishable (the fact that a homeowner received rental income and made a profit from sharing her home with elderly people did not violate the covenant’s restriction that property can only be used for residential purposes).

Moreover, there is no ambiguity in the restrictive covenant. The covenant’s intent is clear that Clark (and other lot owners) may not rent lots to individuals who conduct business on the lots within the Resort. James v. Smith, 537 So.2d 1074, 1076-77 (Fla. 5th DCA 1989), cited by the Clarks and Glenz, is distinguishable on this point (the restrictive covenant in that case prohibited raising horses on the lot, but the exclusion regarding “domestic pets” was ambiguous as the defendants owned two ponies, and horses can be considered domestic pets). Thus, the trial court correctly found that Clark’s activities violate the restrictive covenant.

The argument that the Association’s conduct is inconsistent with its own application and enforcement of the Declaration is also unavailing, as already noted. If the Association’s transient rental program relies on work campers on lots within the Park, lot owners within the Association are entitled to invoke the provisions of the Declaration and to seek injunetive relief (though we express no opinion regarding the merits of such a future claim or the particular facts that might relate to it). The trial court’s findings and legal conclusions regarding the affirmative defenses raised by the Clarks and Glenz (waiver, estoppel, and unclean hands) were detailed and were supported by the evidence at trial, the provisions of the Declaration, and well-settled law.

(3) “Mere Annoyances” versus “Actionable Nuisance”

Article VII, section 5A, of the Declaration prohibits “anything” constituting an annoyance or nuisance to the neighborhood or any other lot owner. Under the case law applicable to claims for injunctive relief to abate a nuisance, the trial court applied an objective standard comparable to the objective standard applicable to a claim of negligence. Bechhold v. Mariner Props., Inc., 576 So.2d 921, 923 (Fla. 2d DCA 1991); Beckman v. Marshall, 85 So.2d 552, 555 (Fla. 1956).

However, “[m]ere disturbance and annoyance as such do not in themselves necessarily give rise to an invasion of a legal right.” A. & P. Food Stores, Inc. v. Kornstein, 121 So.2d 701, 703 (Fla. 3d DCA 1960). Plainly, the application of these standards presents an evidentiary issue, and the trial court’s findings on the issue were supported by substantial competent evidence.

(4) Future Activity—Is the Permanent Injunction Overbroad?

The Clarks and Glenz assert that the complained-of activities were abruptly ended, and that there is no real likelihood the conduct will occur in the future. They maintain that the scope of the permanent injunction is improperly broad. We disagree. The trial court’s ten-page final judgment was carefully tailored.

In paragraph 4 of the final judgment, the trial court found that the defendants and other lot owners were not enjoined from renting their own lots themselves, through the Clark Rental Program, or through some other property management business, so long as they do not violate specific provisions of the Declaration. In paragraph 5, the trial court listed activities which both the Association Rental Program and the Clark Rental Program could conduct without constituting “commercial activity,” if done within the parameters of the Declaration.

IV. Conclusion

To the extent that the .trial judge’s decision to grant a permanent injunction rests on questions of fact, the standard of review is an abuse of discretion. Carricarte v. Carricarte, 961 So.2d 1019, 1020 (Fla. 3d DCA 2007); see also Gulf Bay Land Invs., Inc. v. Trecker, 955 So.2d 1157, 1159 (Fla. 2d DCA 2007). A trial court may grant injunctive relief to redress violations of a restrictive covenant affecting real property without proof of irreparable harm. Autozone Stores, Inc. v. Ne. Plaza Venture, LLC, 934 So.2d 670, 673 (Fla. 2d DCA 2006). Evidence showing the violation is sufficient, for a trial court to grant an injunction. Id. at 674.

In the present case, and for all thesé reasons, we affirm the Final Judgment Granting Declaratory and Injunctive Relief.

      . Because this case comes to us as an appeal from a non-final order under Florida Rule of Appellate Procedure 9.130(a)(3)(B) relating to injunctions, the parties have filed appendices rather than a complete appellate record. A review of the Monroe Circuit Court docket for the case, however, does not disclose a demand for jury trial filed separately from the amended complaint, counterclaims, answers, and affirmative defenses in the appendices.

      . As noted, the trial court recognized that these types of tasks "do not constitute commercial activity as long as done within the parameters of the Covenants and Rules.”


author: PER CURIAM,

text:
    Alan PATE, Appellant, v. STATE of Florida, DEPARTMENT OF CORRECTIONS, Appellee.
    CASE NO. 1D17-0564
    District Court of Appeal of Florida, First District.
    Opinion filed May 16, 2017
    Alan Pate, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Lateasha L. Powell, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM,

DISMISSED. Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005); Baldwin v. Crosby, 905 So.2d 250 (Fla. 1st DCA 2005) (concluding “proper remedy is to file a motion in the circuit court seeking [removal of lien and restoration of funds collected], secure a ruling, and if necessary raise the issue when appellate review is sought' of any final order in the proceedings below”). The petition for writ of prohibition, transferred from Florida Supreme Court case number SC17-0395, is denied.

WETHERELL, OSTERHAUS, and M.K. THOMAS, JJ., CONCUR.


text:
    Nathaniel A. TOLER, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0279
    District Court of Appeal of Florida, First District.
    Opinion filed May 19, 2017
    Nathaniel A. Toler, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, and David Llanes, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated- appeal is granted. Petitioner shall be allowed a belated appeal from the Order Denying Defendant’s Motion for Postconviction DNA Testing in Duval County Circuit Court case number 2008-CF-11377. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal.

B.L. THOMAS, RAY, and KELSEY, JJ., CONCUR.