author: JAY, J.

text:
    HAMILTON DOWNS HORSETRACK, LLC, Appellant, v. STATE of Florida, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF PARI-MUTUEL WAGERING, Appellee.
    CASE NO. 1D16-3876
    District Court of Appeal of Florida, First District.
    Opinion filed September 5, 2017.

      Seann M. Frazier and Marc Ito of Parker, Hudson, Rainer & Dobbs, LLP, Tallahassee, for Appellant.
    Jason L. Maine, General Counsel, Dwight 0. Slater, Chief Appellate Counsel, and Chevonne T. Christian, Assistant General Counsel, Tallahassee, for Appellee.
   JAY, J.

Hamilton Downs Horsetrack, LLC (“Hamilton Downs”), appeals a final order by the Florida Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (“the Division”), rejecting certain factual findings and legal conclusions made by an administrative law judge (“the ALJ”) following a formal hearing. Because the ALJ properly concluded that a violation did not occur as alleged in the administrative complaint, and because the Division should be estopped from prosecuting Hamilton Downs even if it did, we reverse,

I.

Hamilton Downs is a relatively new horse racing establishment located in rural Hamilton County, just south of the Florida-Georgia line. Glenn Richards is owner and managing member of Hamilton Downs. Richards has ambitious plans to turn Hamilton Downs into a first-class pari-mutuel facility complete with a card-room, slot machines, an oval race track, starting gates, and grandstands. For now, however, Hamilton Downs exists as an L-shaped dirt track approximately. 110 yards in length, in an open field, with a shed for betting, a covered box on stilts, and a barn.

Hamilton Downs holds a pari-mutuel permit to conduct quarter horse races. On March 15, 2013, the Division issued an Operating Day License (“the operating license”), authorizing Hamilton Downs to conduct quarter horse barrel match racing as in years past. The operating license set forth Hamilton Downs’ 2014 racing schedule, which consisted of twenty quarter horse performances over a four-day period in mid-June, at a rate of four performances per day, with each performance consisting of eight individual races, for a total of 160 races.

Approximately six months before the 2014 meet was set to occur, the rule authorizing barrel match racing was declared invalid as an unadopted rule. See Fla. Quarter Horse Track Ass'n v. Dep’t of Bus. & Prof'l Reg., 133 So.3d 1118 (Fla. 1st DCA 2014). The Division advised Richards that Hamilton Downs would not be permitted to conduct barrel match racing as in years past, but that it could conduct “flag-drop” racing instead. According to Richards, he asked for information on the applicable rules, but the Division advised him there were no rules governing flag-drop racing.

Three weeks before the 2014 meet was scheduled to occur, a second unforeseen circumstance arose. The organization .on which Hamilton Downs relied for its- horses and riders pulled out of the event. Resolving that the show must go on, .Richards made alternative arrangements. He rounded up college students for riders and an elderly herd of untrained horses as their racing steeds. The 2014 meet went off on schedule. Each race consisted of two horses. The ALJ described this scene very well:

22. The races must be seen to be believed. The 14 events for which video evidence was received show a series of races involving—as a rule—tired, reluctant, skittish, or disinterested horses moving at a slow pace down the dust-choked path. There was no marked starting line or finish line. The horses were often yards apart when [a] red rag-on-a-stick was waved [starting the race]. With one exception (performance 2, race 7), the gait of the “racing” horses ranged between a slow walk and a canter. Horses often simply stood at the starting line before slowly plodding down the track. In one instance, a horse actually backed up, until a bystander took it by the lead, thereafter giving the horse a congratulatory slap on the rump when it began to move in a forward direction. [Louis] Haskell noted races in which riders fell off of their horses, or in which a horse left the course. He described numerous races, aptly, as noncompetitive because one or both of the entrants walked, including one race (day 3, card 3, race 5) in which the racing steed took 1 minute and 45 seconds to cover the 110-yard course. The overall quality of the videotaped races was about what one would expect of an entry-level campers’ horse show held at the conclusion of a two-week YMCA summer camp.

The second race of the meet was a matchup between two horses owned by the same owner, Amie Peacoek. This is what is known as a coupled entry. Where there is a coupled entry in a two-horse race, there can be no meaningful betting because a coupled entry is “considered a single betting interest for purposes of wagering.” Fla. Admin. Code R. 61D-7.001(12). A bet placed on one horse is necessarily a bet placed on both horses, so every betting patron wins.

After this race occurred, a thirty-minute meeting was held between Richards and race officials to discuss how the race should be treated. Among those present was Charles Taylor—an investigative specialist for the Division—whose job it was to verify compliance with all rules and statutes at racing events. Also present was Louis Haskell, who, at the time, was a state steward for the Division. As a state steward, Haskell supervised compliance with state law and performed the responsibility of deciding whether each race should be declared official or a no contest.

During the meeting, Richards tried to ensure that the race was not subtracted from the 160 races he was required to conduct, or if it was, that he could make up the race on a different day. As a possible solution, Richards offered to rerun the race. However, the evidence established that this was not a recognized option; consequently, the proposal was roundly rejected.

Richards also offered to accept a no contest declaration from Haskell. Where a no contest is called, it is possible for a licensee to obtain a replacement race by requesting from the Division an amendment to the racing schedule. Richards was familiar with this procedure and was prepared to make the request to ensure that he performed all of his required races. Richards testified that he was told by Taylor and Haskell that “there’s nothing wrong with these. There’s no rules. Let’s go, let’s continue on, let’s finish them.” Richards asked about other races as well. Each time, he was told “[tjhere are no rules ... go ahead with it.” Ultimately, Richards’ offer to accept a no contest was rejected, and Haskell declared the race official.

Months later, the Division filed an administrative complaint alleging, among other things, that Hamilton Downs failed to operate all the races scheduled in the operating license, in violation of section 550.01215(3), Florida Statutes, which requires each permitholder to “operate all performances at the date and time specified on its license.” In other words, the Division alleged that Hamilton Downs failed to conduct all of the 160 races at the 2014 meet. Based upon Hamilton Downs’ request, the matter proceeded to a formal administrative hearing.

At the hearing, the Division’s theory of prosecution was two-fold. First, the Division argued that the quality of the races at the 2014 meet was so bad that, under the law, they did not constitute races at all. In his recommended order, the ALJ concluded that this argument was without merit, and, on appeal, the Division does not dispute this part of the ALJ’s conclusions.

Next, the Division contended that the second race should not qualify as a race because it was not a pari-mutuel race on which betting could occur. The ALJ rejected this argument too, concluding as follows:

[T]he Division’s efforts to cobble together various statutory and regulatory definitions to create a standard by which coupled entry races are to be nullified does not meet the requirements that violations of law be limited to those pled, and that statutes authorizing penal relief be strictly construed, with any ambiguity construed against the Division.

The ALJ further concluded that the Division should be estopped from sanctioning Hamilton Downs for the alleged violation—even if the violation did occur—and ultimately recommended that the Division enter a final order dismissing the amended complaint.

The Division entered a final order in which it rejected and modified certain of the ALJ’s factual findings and legal conclusions. The Division concluded that an alleged violation occurred because the second race was not a pari-mutuel race and that estoppel did not apply to the facts of the case. Consequently, it imposed a $1,000.00 fine against Hamilton Downs. This appeal followed.

II.

Section 120.57(1)((), Florida Statutes, provides that the agency may not reject or modify an ALJ’s findings of fact unless the agency first determines from a review of the entire record that the findings of fact were not based upon competent, substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law. “When competent substantial evidence in the record supports the ALJ’s findings of fact, ‘the agency may not reject them, modify them, substitute its findings, or make new findings.’ ” Walker v. Bd. of Prof'l Eng’rs, 946 So.2d 604, 605 (Fla. 1st DCA 2006) (quoting Gross v. Dep’t of Health, 819 So.2d 997, 1001 (Fla. 5th DCA 2002)). “Credibility of the witnesses is a matter that is within the province of the [ALJ], as is the weight to be given the evidence.” Stinson v. Winn, 938 So.2d 554, 555 (Fla. 1st DCA 2006). “The [ALJ] is entitled to rely on the testimony of a single witness even if that testimony contradicts the testimony of a number of other witnesses.” Id.

An agency “may reject or modify the conclusions of law over which it has substantive jurisdiction.” § 120.57(1)(Z), Fla. Stat. When doing so, “the agency must state with particularity its reasons for rejecting or modifying such conclusion of law ... and must make a finding that its substituted conclusion of law ... is as or more reasonable than that which was rejected or modified.” Id. An appellate court reviews an agency’s conclusions of law de novo and “will defer to the agency’s conclusions of law unless they are clearly erroneous or contrary to law.” U.S. Blood Bank, Inc, v. Agency for Workforce Innovation, 85 So.3d 1139, 1142 (Fla. 3d DCA 2012). “[I]n doing so, this court must give ‘great deference to the agency’s interpretation of the statutory policy it is to administer ... [and] be moved to intervene only by clearly erroneous interpretations of a statute.’” Murciano v. State, 208 So.3d 130, 134 (Fla. 3d DCA 2016) (quoting Bethesda Healthcare Sys., Inc. v. Agency for Health Care Admin., 945 So.2d 574, 576 (Fla. 4th DCA 2006)).

The Division erroneously rejected the ALJ’s conclusion that the Division failed to prove the alleged violation. While the second race may not have constituted a pari-mutuel race, Hamilton Downs was not charged with failing to conduct a parimutuel race. Instead, it was charged with failing to conduct a race. Specifically, the administrative complaint alleged that Hamilton Downs violated section 550.01215(3) by “failing to make 20 performances between June 18, 2014 and June 22, 2014 at a rate of four performances per day.” “‘Performance’ means a series of events, races, or games performed consecutively under a single admission charge.” § 550.002(25), Fla. Stat. (emphasis added). “Race” is defined as a “contest for purse, stakes or entry fees, on an approved course, and in the presence of duly appointed racing officials.” Fla. Admin. Code. R. 61D-2.00K15).

Here, it is undisputed that the second race occurred on a licensed, approved course. Furthermore, it is undisputed that the race occurred between two horses in the presence of duly appointed racing officials. Finally, the evidence demonstrated that the winner of each race received a purse of $100, and second place received a purse of $50. Therefore, the second race satisfied the definition of a “race” for purposes of determining whether Hamilton Downs committed the alleged violation. As the ALJ rightly observed, violations must be limited to those alleged in the pleadings. Cottrill v. Dep’t of Ins., 685 So.2d 1371, 1372 (Fla. 1st DCA 1996) (“Predicating disciplinary action against a licensee on conduct never alleged in an administrative complaint or some comparable pleading violates the Administrative Procedure Act.”).

Moreover, even if a violation occurred as alleged, the ALJ properly concluded that the doctrine of equitable estop-pel precluded prosecution of Hamilton Downs. “The elements which must be present for application of estoppel are: ‘(1) a representation as to a material fact that is contrary to a later-asserted position; (2) reliance on that representation; and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon.’ ” Council Bros., Inc. v. City of Tallahassee, 634 So.2d 264, 266 (Fla. 1st DCA 1994) (quoting Dep’t of Revenue v. Anderson, 403 So.2d 397, 400 (Fla. 1981)). Generally, estoppel may only be applied in cases of misrepresentations of fact, not misstatements of law. Id. at 266. “Equitable estoppel will apply against a governmental entity ‘only in rare instances and under exceptional circumstances.’ ” Id. (quoting N. Am. Co. v. Green, 120 So.2d 603, 610 (Fla. 1959)).

One seeking to invoke the doctrine of estoppel against the government first must establish the usual elements of es-toppel, and then must demonstrate the existence of affirmative conduct by the government which goes beyond mere negligence, must show that the governmental conduct will cause serious injustice, and must show that the application of estoppel will not unduly harm the public interest. " ’ !-

Council Bros., 634 So.2d at 266 (citing Alachua Cty. v. Cheshire, 603 So.2d 1334, 1337 (Fla. 1st DCA 1992)).

The ALJ framed the basic issue as “whether estoppel as to the coupled entry race is warranted as a. result of the effect of the 30-minute meeting held after, the second race, and the decision by Mr. Has-kell to declare the race to be ‘official.’” After discussing the content of the “lengthy conversation” that took place during the meeting, the ALJ answered this question in the affirmative, finding that “[bjased on the foregoing, by declaring the race to be official, the Division represented to Hamilton Downs that the race would.be counted among those required under the terms of its permit, a representation of material fact that is contrary to the Division’s position in this proceeding.” Although this was labeled as a conclusion of law, it was in reality a finding of , fact.

We conclude that the ALJ’s factual finding that Richards was misled was supported by competent, substantial evidence and, consequently, could not be disturbed by the Division. The evidence reflects that, during this meeting, Richards made every effort to satisfy race officials and ensure compliance with state law. He proposed at least two solutions, one of which was a viable course of action that would have enabled Hamilton Downs to obtain an additional, replacement race. However, according to Richards, Taylor and Haskell assured him there was “nothing wrong” with the race and that there were “no rules” governing flag-drop racing—a statement consistent with what Richards previously had been told by the Division. After the race was declared official, the participants moved forward with the next race. Months later, the Division changed its position. On this evidence, the ALJ could properly find that the Division made an initial representation that- was contrary to its subsequent position.

It does not matter that Richards’ testimony included hearsay statements by Taylor and Haskell. The statements were made by officials employed by the Division in. the scope of their employment, meaning that the statements would be admissible in a civil action. See § 90.803(18)(d), Fla. Stat. (providing that “a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationship” is not inadmissible). Therefore, the statements were sufficient to support the ALJ’s finding. See Harris v. Game & Fresh Water Fish Comm’n, 495 So.2d 806, 808 (Fla. 1st DCA 1986) (“In administrative hearings, hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible' over objection in civil actions") (emphasis added).

We further conclude that Richards relied on the Division’s representation to his detriment. Richards testified that he would have requested an additional race but for Haskell and Taylor’s assurance that the second race counted and but for Haskell’s declaration that the race was official. Such a holding, does, not harm the public interest and avoids a serious injustice. The public trust is undermined when the government punishes people for violations the government causes.

Accordingly, the final order is REVERSED, and the case is REMANDED for adoption of the recommended order. Prysi v. Dep’t of Health, 823 So.2d 823, 826 (Fla. 1st DCA 2002).

B.L. THOMAS, C.J., and WOLF, J., CONCUR.

      . In response to a question from the Division's attorney, Richards testified that "[y]our two state people, Chuck and LP, said there's nothing wrong with these, There's no rules. Let's go, let’s continue on, let’s finish them." "Chuck” refers to Charles Taylor, the Division’s investigative specialist. We think it is clear that "LP” refers to Haskell—the Division’s race steward—inasmuch as Taylor and Haskell were the only "state people” to whom Richards could have been referring.


source: Caselaw Access Project

author: WALLACE, Judge.

license: Public Domain

text:
    Jamie LANDRY, Appellant, v. CHARLOTTE MOTOR CARS, LLC, and American States Insurance Company, Appellees.
    Case No. 2D16-4430
    District Court of Appeal of Florida, Second District.
    Opinion filed September 6, 2017

      Zachary A. Harrington, Roger D. Mason, II, and Ashley V. Goodman of Roger D. Mason, II, P.A., Tampa, for Appellant.
    Sara Castro and David A. Holmes of Farr, Farr, Emerich, Hackett, Carr & Holmes, P.A., Punta Gorda, for Appellees.
   WALLACE, Judge.

Jamie Landry appeals the trial court’s order that dismissed her action for alleged odometer fraud against Charlotte Motor Cars, LLC, and American States Insurance Company (collectively, “the Dealership”), as a sanction for the asserted spoliation of the vehicle in question after it was repossessed. Because the Dealership failed to establish that the vehicle was lost, misplaced, or destroyed, we reverse.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

In October 2013, Ms. Landry purchased a 2004 Dodge Durango from Charlotte Motor Cars. About six months later, Ms. Landry went to another car dealer to trade in the vehicle, and the other car dealer told Ms. Landry that there were odometer rollback issues with the vehicle. In late 2014, United Auto Credit repossessed the vehicle.

On January 12, 2015, Ms. Landry filed her initial complaint against the Dealership. Over a year later, on or about May 17, 2016, the Dealership’s attorneys sent a preservation letter and request to inspect the vehicle to Ms. Landry’s attorneys, demanding that Ms. Landry preserve the vehicle and make it available for inspection. Ms. Landry responded through her attorneys, “[Ms. Landry] no longer has the vehicle and you know that she no longer has the vehicle, so I’m not sure what the purpose of this letter is.” The Dealership’s attorneys replied, “That has been our understanding on this end .... If she did still have possession, custody, or control, we would want to inspect the vehicle. Now that we have confirmation she does not, we can proceed accordingly.” A few days later, the Dealership filed its motion for sanctions, alleging that Ms. Landry had spoliated the vehicle.

On May 24, 2016, Ms. Landry filed an amended complaint, alleging various common law and statutory claims based on the alleged odometer fraud regarding the vehicle that Ms. Landry had purchased from Charlotte Motor Cars. The Dealership timely filed its response to the amended complaint and affirmative defenses. The trial court established August 29, 2016, as the deadline for the parties to complete discovery and set a three-day jury trial for the trial period beginning September 6, 2016.

On July 12, 2016, Ms. Landry filed a response and memorandum of law in opposition to the Dealership’s motion for sanctions. In Ms. Landry’s response to the motion for sanctions, Ms. Landry alleged that after another dealership told her about the odometer issues, she contacted Charlotte Motor Cars. According to Ms. Landry, Charlotte Motor Cars “told her that the odometer situation was her problem and refused to assist her in any way.” Ms. Landry also stated that she submitted discovery to United Auto Credit in an attempt to locate the vehicle.

A hearing on the motion for sanctions was set for Monday, July 18, 2016. The hearing was not noticed as an evidentiary hearing. On the Friday before the Monday hearing, the Dealership filed a memorandum of law in support of its motion for sanctions, an affidavit from an “expert witness” in support of its motion, and a supplemental witness list in which it added the name of the “expert witness” who completed the affidavit. At the hearing, Ms. Landry’s attorney objected to the late filing of the Dealership’s memorandum of law. The parties did not introduce the Dealership’s expert affidavit or any other exhibits into evidence or call any witnesses to testify. Ms. Landry’s attorney informed the trial court that his client was still in the process of trying to locate the vehicle.

The trial court entered an order on July 21, 2016, granting the Dealership’s motion for sanctions and dismissing the case. In its written order, the trial court found (1) that Ms. Landry does not have possession of the vehicle; (2) that she did not willfully dispose of the vehicle; (3) that she “had a duty to preserve the direct evidence in this case”; and (4) that the Dealership lacked the ability to defend itself without inspecting the vehicle. Ms. Landry filed a timely motion for rehearing, alleging that the vehicle still exists, has an active Florida title, and was then for sale at a car lot in Sanford, Florida. The trial court denied the motion, and this appeal followed.

II. THE PARTIES’ ARGUMENTS ON APPEAL

The Dealership raises a threshold issue, arguing the record is not adequate for appellate review because the trial court’s order is not fundamentally erroneous on its face and Ms. Landry has failed to provide a transcript of the hearing or a statement of the evidence prepared in accordance with Florida Rule of Appellate Procedure 9.200(b)(4). For her part, Ms. Landry raises three points on appeal: (1) Ms. Landry did not “spoliate” the vehicle; (2) the trial court’s order was facially deficient and absent a finding of bad faith, dismissal was too harsh a sanction; and (3) the order was premature in the absence of further discovery.

Regarding the Dealership’s threshold issue,' it is clear from our record that the hearing was a nonevidentiary hearing at which the trial court considered only the parties’ oral and written legal arguments; and neither party claim otherwise in their appellate briefs. This court does not require a transcript of a nonevidentiary hearing to determine whether the Dealership presented evidence sufficient to support its motion for sanctions for spoliation; and -therefore, the Dealership’s issue is without merit and does not warrant further discussion. See Rollet v. de Bizemont, 159 So.3d 351, 357 (Fla. 3d DCA 2015) (“Where the hearing at issue is non-evi-dentiary and consists only of legal argument, the failure to provide a transcript is not necessarily fatal to appellate review.”); see also Fish Tale Sales & Serv., Inc. v. Nice, 106 So.3d 57, 63 (Fla. 2d DCA 2013). We turn now to the three issues raised by Ms. Landry.

III. DISCUSSION

A. The Standard of Review

We review the trial court’s order granting the Dealership’s motion for sanctions and dismissing the casé without prejudice for an abuse of discretion. See Torres v. Matsushita Elec. Corp., 762 So.2d 1014, 1018 (Fla. 5th DCA 2000) (applying the abuse of discretion standard to an order granting a motion for spoliation sanctions and dismissing the case). To the extent that the parties raise an issue that is a matter of law, we review the issue de novo. See Osmulski v. Oldsmar Fine Wine, Inc., 93 So.3d 389, 392 (Fla. 2d DCA 2012).

B. Whether Ms. Landry “Spoliated” the Vehicle

Ms. Landry argues that she did not spoliate the vehicle because (1) the vehicle still'exists; (2) she did riot have a duty to maintain possession of the vehicle; and (3) the vehicle was not crucial to any legitimate defense available to the Dealership. A two-part analysis is appropriate to a consideration of this argument: (A) whether Ms. Landry’s loss of possession falls within the definition of “spoliation” or “lost” in the context of spoliation sanctions; and (B) whether spoliation sanctions were warranted under the threefold inquiry required for the imposition of spoliation sanctions. Specifically as to part (A), Ms. Landry argues that to meet the first part of the threefold inquiry for spoliation sanctions (i.e., the evidence existed at one time), the evidence must no longer exist or be unavailable to the party claiming spoliation. Further, Ms. Landry argues that the repossession does not mean that the vehicle was lost, misplaced, or destroyed; rather, it simply means that it is not in Ms. Landry’s possession. Our resolution of part (A) of Ms. Landry’s argument controls our disposition of this case.

Generally speaking, sanctions may be appropriate when a.party has spoliated, lost, or misplaced evidence. League of Women Voters of Fla. v. Detzner, 172 So.3d 363, 391 (Fla. 2015). A determination that evidence has been spoliated does not inevitably lead to the imposition of sanctions under the threefold inquiry. Instead, the determination of whether evidence has been spoliated requires a different inquiry. Spoliation is defined as “[t]he destruction, or significant and meaningful alteration of [evidence],” Vega v. CSCS Int’l, N.V., 795 So.2d 164, 167 n.2 (Fla. 3d DCA 2001) (quoting Black’s Law Dictionary 728 (5th ed. 1983)); or “the failure to preserve property for another’s use as evidence in pending” or reasonably foreseeable litigation, id. (quoting Jay E. Rivlin, Note, Recognizing an Independent Tort Action will Spoil a Spoliator’s Splendor, 26 Hofstra L.Rev. 1003, 1004 (1998)). See also Aldrich v. Roche Biomedical Labs., Inc., 737 So.2d 1124, 1125 (Fla. 5th DCA 1999) (similar definition); Spoliation, Black’s Law Dictionary 1620 (10th ed. 2014) (defining spoliation as “[t]he intentional destruction, mutilation, alteration, or concealment of evidence”). Evidence is deemed “lost” when it is “beyond the possession and custody of its owner and not locatable by diligent search.” Lost, Black’s Law Dictionary 1089 (10th ed. 2014).

Here, to support its-contention that the vehicle was spoliated or lost, the Dealership relied on counsel’s arguments and a fact conceded by Ms. Landry—that she no longer has possession of the vehicle because it was repossessed. Counsel’s unsworn arguments for the Dealership do not constitute evidence. See Rowe v. Rodriguez-Schmidt, 89 So.3d 1101, 1104 (Fla. 2d DCA 2012). And the Dealership did not present any testimony or evidence that the vehicle was spoliated or lost. Moreover, the repossession of the vehicle does not prove that the vehicle was destroyed or altered or that Ms. Landry failed to preserve the vehicle. Assuming that' Ms. Landry had a duty to preserve the vehicle, Ms. Landry only had to preserve the vehicle so that the Dealership would have an opportunity to examine it. See Torres, 762 So.2d at 1018 (quoting DeLong v. A-Top Air Conditioning Co., 710 So.2d 706, 707 (Fla. 3d DCA 1998)).

Furthermore, it is not self-evident that Ms. Landry was required to prevent a nonparty from rightfully possessing the vehicle to preserve the vehicle, especially when the Dealership knew the vehicle’s identification number and “with the exertion of any effort could have located and examined the [vehicle].” See Valenzuela v. State, 426 So.2d 1294, 1295 (Fla. 3d DCA 1983) (finding the police did not fail to preserve .evidence when it returned the rental truck to its owner instead of the defendant because the defendant had the truck’s identification number and could have located the truck). In addition, we cannot deem the vehicle to be '“lost” when the Dealership did not present any evidence that the vehicle is not in the custody of its rightful owner or is not locatable by a diligent search. See Lost, Black’s Law Dictionary 1089 (10th. ed. 2014). Absent such evidence, the trial court’s finding that Ms. Landry breached a duty to preserve the vehicle was premature at best. It follows that the trial court erred in accepting the Dealership’s claim that Ms. Landry had “spoliat[ed] essential evidence and den[ied the Dealership] the ability to defend this action.”

C. Dismissal: The Harshest Sanction

Because we reverse and remand this case based on the Dealership’s failure to establish that the vehicle was spoliated, we do not need to reach the question of the appropriate remedy. After all, there is no basis for imposing sanctions unless a party spoliated evidence and the movant satisfied the threefold inquiry for spoliation sanctions. Nevertheless, because the issue may arise on remand, we address the question of remedy to clarify the evidence and findings of fact necessary for the dismissal of an action based on the spoliation of evidence.

When there is a basis for imposing spoliation sanctions, “the appropriate sanction varies according to [ (1) ] the willfulness or bad faith, if any, of the party who lost the evidence, [ (2) ] the extent of the prejudice suffered by the other party, and [ (3) ] what is required to cure the prejudice.” Fleury v. Biomet, Inc., 865 So.2d 537, 539 (Fla. 2d DCA 2003) (first citing Harrell v. Mayberry, 754 So.2d 742, 745 (Fla. 2d DCA 2000); then citing Sponco Mfg., Inc. v. Alcover, 656 So.2d 629, 630 (Fla. 3d DCA 1995)). Generally speaking, in the absence of willfulness or bad faith, dismissal—the harshest of all sanctions— is appropriate only when the movant presents evidence (e.g., expert testimony) demonstrating that its case is fatally prejudiced by its inability to examine the spo-liated evidence. See Fleury, 865 So.2d at 539 (“Dismissal .., [is] reserved for cases in which one party’s loss of evidence renders the opposing party completely unable to proceed with its case or defense.” (citing Harrell, 754 So.2d at 745)); Reed v. Alpha Prof'l Tools, 975 So.2d 1202, 1204 (Fla. 5th DCA 2008) (“Spoliation is not a strict liability concept—‘lose the evidence, lose the case’—no matter whether the plaintiff or the defendant was responsible for the loss.”); see, e.g., Sponco Mfg., 656 So.2d at 631 (holding that default was appropriate when expert testimony showed the movant “was no longer able to proceed” without the crucial evidence).

That is, to dismiss a case based solely on prejudice to the movant, the spo-liated evidence must be so crucial as to completely prevent the movant from defending itself, not merely prevent the mov-ant from defending itself completely. Reed, 975 So.2d at 1204; compare Nationwide Lift Trucks, Inc. v. Smith, 832 So.2d 824, 826 (Fla. 4th DCA 2002) (affirming the spoliation sanction because the “plaintiffs were unable to proceed without the altered or lost evidence”), with Fleury, 865 So.2d at 540 (finding no basis for spoliation sanctions when neither party was at fault for the spoliation and the “the defendants were not prejudiced by the spoliation”). Otherwise, the “courts prefer to utilize adverse evidentiary inferences and adverse presumptions during trial to address the lack of evidence.” Golden Yachts, 920 So.2d at 780.

Accordingly, on remand, even if the Dealership proves the vehicle was spoliat-ed and satisfies the threefold inquiry, dismissal will not be the appropriate remedy, unless it appears that the alleged spoliation of the vehicle fatally prejudiced the Dealership’s defense.

D. The Impact of Ongoing Discovery

Ms. Landry also argues that the trial court’s order of dismissal was premature because discovery was still pending and Ms. Landry did not have a chance to depose the Dealership’s expert. It appears from our record that there had been little discovery in this matter when the trial court dismissed the action. The Dealership filed its expert’s affidavit on .the Friday before the Monday hearing, and Ms. Landry had not deposed the Dealership’s expert.

If the trial court’s decision to dismiss the case is to be based on the defense expert’s opinion regarding prejudice, then Ms. Landry “should have the opportunity to test those opinions in discovery.” See Reed, 975 So.2d at 1205. As the Fifth District explained in Reed, “[t]he court cannot correctly evaluate the [movant’s] claim of prejudice until this has been done. Depending on the state of the record once essential discovery has been done and the record has been developed, the trial court may or may not correctly arrive at the same conclusion.” Id. Therefore, on remand, we direct the trial court to allow the parties an opportunity to engage in essential discovery before holding an evidentia-ry hearing on the motion for sanctions.

IV. CONCLUSION

For the foregoing reasons, the trial court erred in finding that the vehicle had been spoliated without any evidence to support such a finding and in dismissing Ms. Landry’s action as a sanction. Accordingly, we reverse the order of dismissal and remand for further proceedings consistent with this opinion. On remand, the trial court shall allow the parties an opportunity to conduct essential discovery before holding an evidentiary hearing on the sanctions motion.

Reversed and remanded with directions.

BLACK, J., Concurs.

KELLY, J., Concurs in result only.

      . We emphasize that there has not been an evidentiary hearing in this case. The facts stated in this opinion are drawn from the pleadings, motions, memoranda, orders, court minutes, and other documents in the record. The traditional appellate presumption of correctness requires us to review the record in the light most favorable to sustaining the order under review. See In re Doe, 932 So.2d 278, 283-84 (Fla. 2d DCA 2005).

      . At some point, Charlotte Motor Cars had assigned its finance agreement with Ms. Landry to United Auto Credit.

      . The Dealership actually complains about Ms. Landry’s failure to provide a "stipulated statement of the facts.” Here, the Dealership confuses the “stipulated statement” that may be used in lieu of the indexed record prepared by the clerk of the lower tribunal in accordance with rule 9.200(a)(3) with the statement of the evidence or proceedings that may be prepared under rule 9.200(b)(4) when no report of the proceedings was made or if the transcript is unavailable. In this case, we have an indexed record on appeal prepared by the clerk; thus, the use of a "stipulated statement” in accordance with rule 9.200(a)(3) is neither available nor appropriate.

      . Ms. Landry argues her second point on appeal as two separate issues in her initial brief; (1) the trial court’s order is defective on its face and (2) the sanction of dismissal was too harsh, Because these arguments are based on the same premise, we have consolidated them for discussion and address them under the second issue in this opinion.

      . To impose spoliation sanctions under the threefold inquiry, "the court must determine whether; (1) 'the evidence existed at one time,1 (2) hhe spoliator had a duty to preserve the evidence, and’ . (3) ‘the evidence was crucial to an opposing party[’s] being able to prove its prima facie case or a defense.’ ” Osmulski, 93 So.3d at 392 (alteration in original) (quoting Golden Yachts, Inc. v. Hall, 920 So.2d 777, 781 (Fla. 4th DCA 2006)).

      . In fact, Ms. Landry alleged in her motion for rehearing that the vehicle still exists, has an active Florida title,.'and was then for sale at a car lot in Sanford, Florida, .

      . We note that if the vehicle was spoliated, neither of the parties will have an opportunity "to present expert testimony founded on the experts’ examination or testing of the [vehicle]. Therefore, it cannot be said that the loss of the evidence put the [Dealership] at a disadvantage in the litigation.” See Fleury, 865 So.2d at 540 (finding "the defendants were not prejudiced by the spoliation of evidence” when the evidence was lost before either party could examine it); see also Reed, 975 So.2d at 1204 (recognizing that the defendant "will benefit from the inherent limitations on the plaintiffs proof and will be able to match the plaintiff's access to the available evidence”). In this opinion, we do not decide the question of whether the alleged spoliation of the vehicle fatally, prejudiced the Dealership. On remand, it is possible that the trial court may need .to address that question based on the facts developed at an evidentiary hearing.


author: SALTER, J.

text:
    NORTHROP GRUMMAN SYSTEMS CORPORATION, etc., Appellant, v. Rosa-Maria F. BRITT, etc., Appellee.
    No. 3D16-2583
    District Court of Appeal of Florida, Third District.
    Opinion filed September 6, 2017

      DLA PiPer and Fredrick H.L: McClure and prumon Phillips (Tampa), Munger, ^odes ^ Olson and Michael B. DeSanetis (Washington, DC) and John B. Major (San Francisco, CA), for appellant,
    The Ferraro Law Firm and Juan P. Bauta, II, and Janpaul Portal, for appellee.

      Crowell & Moring and William L. Anderson; Shook Hardy & Bacon and Frank Cruz-Alvarez, for Florida Justice Reform Institute and Coalition for Litigation Justice, Inc., as amici curiae.
    Before SUAREZ, SALTER and LUCK, JJ.
   SALTER, J.

This is a mesothelioma case originally brought by Dennis Britt and his wife, Rosa-Maria Britt (as to loss of consortium), as plaintiffs (“Mr. and Mrs. Britt”), against Northrop Grumman Systems Corporation (“Northrop”). In 2014, Mr. Britt passed away, and Mrs. Britt (as personal representative of his estate), was substituted for Mr. Britt. Mrs. Britt also amended the complaint to add a claim for wrongful death.

At the end of a week-long trial, the jury rendered a verdict awarding Mr. Britt’s estate a total of $519,265.60 in medical and funeral expenses, and awarding Mrs. Britt $8,500,000.00 in compensatory damages. Northrop appealed and has raised five issues here:

1. Northrop argues that Mrs. Britt failed to file and serve her motion for substitution within 90 days after Mr. Britt’s death was “suggested upon the record,” as required by Florida Rule of Civil Procedure 1.260(a)(1), requiring dismissal of the complaint.

2. Northrop asserts that Mrs. Britt failed to prove that Mr. Britt’s exposure to asbestos while on the premises of Northrop (and companies acquired by Northrop) was a substantial cause of Mr. Britt’s mesothelioma, and that the trial court erred when it denied Northrop’s motions for a directed verdict.

3. Northrop claims error in the trial court’s rulings allowing the admission of expert testimony by Mrs. Britt’s expert witness, Dr. Murray Finkelstein. Northrop alleges that Dr. Finkelstein’s methodology was equivalent to an “any exposure” or “single fiber” causation opinion—a methodology discredited by the courts and one which precluded the opinion from admission into evidence.

4. Northrop also maintains that a 2013 asbestos fiber analysis and report prepared by Dr. Anna Somigliana in Milan, Italy, was a “late-disclosed and prejudicial expert opinion” that should not have been admitted into evidence.

5. Northrop contends that the trial court should not have excluded evidence regarding nonparties that may have exposed Mr. Britt to asbestos during his career, depriving Northrop of an apportionment of liability on the verdict form under Fabre v. Marin, 623 So.2d 1182 (Fla. 1993). Northrop argues that there was as much evidence of causation and Mr. Britt’s exposure to asbestos on the premises of nonparties Mack Trucks and Bekins as there was regarding his exposure on the premises of Northrop.

We find no reversible error regarding any of these points, and thus affirm the verdict and final judgment below. Before addressing Northrop’s contentions in order, we consider the pertinent facts and proceedings that culminated in the verdict and final judgment.

Pertinent Facts and Proceedings Below

Mr. Britt was an employee benefits ad-visor during the period 1978-97. As part of that work, Mr. Britt visited commercial and industrial facilities to speak with, and enroll, the employees at those facilities. Those facilities included workplaces owned and operated by Northrop and subsidiaries.

Mr. Britt testified before his death that, during the course of his visits to Northrop facilities in Bethpage, New York, and Hawthorne, California, he was exposed to, and inhaled, asbestos fibers while on the premises of the facilities. He, his physician, and his expert witness, testified that Mr. Britt’s exposure to the asbestos was a substantial cause of his ultimately-fatal mesothelioma.

i^t trial, Mrs. Britt introduced evidence that Northrop’s facilities where Mr. Britt had worked contained asbestos-insulated pipes that released airborne materials above him, and ten to fifteen feet away from him, during the maintenance activities he saw during his visits. His deposition testimony that he was on site at Northrop’s facilities each year from 1979 to the “mid 80s,” and working in areas where asbestos remediation and maintenance activities were taking place, provided an estimate of over 500 days of exposure.

Although Mr. Britt’s deposition also included his description of visits to non-party facilities owned by Mack Trucks and Be-kins Van Lines, and his observations of dust and maintenance performed on pipes and boiler rooms at those facilities, there was no evidence that the pipes and boilers at those facilities were asbestos-containing. In contrast, the evidence at trial contained extensive documents and testimony regarding the presence of asbestos in the pipes and boiler rooms at the Northrop sites visited by Mr. Britt, and regarding the repair and remediation work performed during the applicable period.

There was no dispute regarding the fact that Mr. Britt was diagnosed with, and died because of, mesothelioma. The expert medical testimony in the case addressed whether asbestos fibers from the Northrop premises were a substantial cause of the mesothelioma (a classification as “asbestos-related”), or whether the mesothelioma was instead “spontaneous,” “idiopathic,” or “non-asbestos-related.” This differential diagnosis is primarily performed through a microscopic examination of a patient’s lung tissue samples to count the types of asbestos fibers and asbestos bodies per square centimeter.

Northrop’s expert, Dr. Roggli, concluded that the pathological assessment of Mr. Britt’s lung tissue and lymph node samples was not consistent with an asbestos-related variant of mesothelioma. The plaintiffs expert, Dr. Finkelstein, assessed Mr. Britt’s exposure history—taking into account Dr. Finkelstein’s own published, peer-reviewed studies on workers diagnosed with asbestos-related mesothelioma after exposure to asbestos-laden insulation—and the asbestos fiber pathology reports on tissue samples from Mr. Britt’s lungs. Dr. Finkel-stein also testified regarding the two other known causes of mesothelioma, ruling them out based on the facts of Mr. Britt’s work and medical history.

As already noted, an asbestos fiber report prepared by Dr. Anna Somigliana regarding her microscopic examination of tissue from Mr. Britt’s lungs was identified and listed on the plaintiffs pretrial exhibit catalogue on August 22, 2016, four weeks before trial was scheduled to begin. The exhibit was hand-delivered to counsel for Northrop the following day.

The jury returned a verdict in favor of Mrs. Britt. The trial court denied Northrop’s renewed motion for directed verdict and entered a final judgment against Northrop. This appeal followed.

Analysis

I. The Motion for Substitution and Rule 1.260(a)(1)

Northrop’s argument that Mrs. Britt’s motion for substitution was untimely (following Mr, Britt’s death in 2014) involves the application of Florida Rule of Civil Procedure 1.260(a)(1), presents a pure question of law, and is thus reviewed de novo. D’Angelo v. Fitzmaurice, 863 So.2d 811, 314 (Fla. 2003).

Rule 1.260(a)(1) states that a case must be dismissed as to a deceased plaintiff if a motion for substitution is filed over 90 days “after the death is suggested upon the record by service of a statement of the fact of the death in the manner provided for the service of the motion.” In the present case, Mr. Britt passed away on June 13, 2014. On jime 16, 2014, counsel for Mrs. Britt sent an email and attached letter to the trial judges and parties advising them of Mr. Britt’s death. That communication was not filed or recorded, however, in the circuit court docket or in the official records of Miami-Dade County.

The motion for substitution (which also included a motion for leave to amend) was filed and served December 4, 2014. The trial court denied the motion, but with leave to refile upon a showing demonstrating reasons for failing to comply with the 90 day requirement of Rule 1.260(a)(1). When Mrs. Britt renewed the motion with legal argument regarding the proper application of Rule 1.260(a)(1), the bourt granted the motion to substitute 'and to amend.

The question of law presented is whether counsel’s prompt email and letter, essentially a courtesy notice following an event that obviously would affect pretrial proceedings, was “suggested upon the record by service of a statement of the fact of the death in the manner provided for service of the motion.” If so; the motion to substitute was untimely. But if not, the motion to substitute was timely and Mr. Britt’s claim-was not subject to dismissal.

In the Rule’s existing text, we conclude that “suggested upon the record” and “served in the manner provided for service of the motion” compel the sanie result. The “statement of the fact of the death” must be both (a) filéd with the clerk of court for docketing to make it part of the official record in the case, and (b) “served” pursuant to Florida Rule of Judicial Administration 2.516(d), which in turn includes the requirement for the document to be “filed with the court.”

In the early days of this Court, a similar question was considered in the case of Pan American World Airways, Inc. v. Gregory, 96 So.2d 669, 671 (Fla. 3d DCA 1967). The Court considered Florida Rule of Civil Procedure 1.4, “Service of Pleadings and Papers,” precursor to Florida Rule of Judicial Administration 2.516(d), "Service of Pleadings and Documents:”

[A]ll the rules bearing on the method of presenting pleadings to the court should be construed together. It therefore follows that the mere service of a pleading is not enough to present the pleading to the court. An additional act is necessary and an attorney has not presented his client’s pleading to the court until he has complied with that portion of Rule 1.4(d) ,.. providing that the pleading shall be filed with the court.

As Mrs. Britt’s email and letter were not “filed with the court,” the 90-day deadline in Florida Rule of Civil Procedure 1.260(a)(1) did not commence until Mrs. Britt served her motion for substitution (which included a statement of the fact of Mr. Britt’s death) and also filed that motion with the clerk of court. The same conclusion was reached by another district court of appeal in Wilson v. Clark, 414 So.2d 526 (Fla. 1st DCA 1982) (time provision of Rule 1.260(a) is triggered by the recording or filing of the suggestion of death, not simply by service on counsel). Although the trial eourt committed no error in allowing substitution, in this case,.we take the occasion to suggest that .“suggested upon the record” may be an archaic phrase worthy of review by The Florida Bar’s Civil Procedure Rules Committee.

II. Causation

We review the trial court’s denial of Northrop’s motion for directed verdict on causation de novo, but in doing so we evaluate the evidence adduced at trial in the light most favorable to Mrs. Britt, drawing every reasonable inference from that evidence in her favor. We must sustain the jury’s verdict if supported by competent, substantial evidence. Frieri v. Capital Inv. Serv., Inc., 194 So.3d 451, 454 (Fla. 3d DCA 2016); R.J. Reynolds Tobacco Co. v. Ballard, 163 So.3d 541, 545 (Fla. 3d DCA 2015).

Northrop contends that Dr. Finkel-stein’s opinion failed to establish the amount-of asbestos Mr. Britt inhaled over the years he visited Northrop’s premises. The evidence at trial included, however, Northrop’s' own industrial hygienist’s report that in 1985 Northrop’s Hawthorne plan had “no exposure monitoring records for employees engaged in- maintenance-type functions on asbestos-containing fireproofing or pipe lagging materials.” A Northrop witness testified that there was no routine air sampling done at either the Hawthorne or Bethpage facilities during the period Mr; Britt was there. Northrop’s records substantiated the presence of asbestos and.-remediation activities at the Northrop facilities in Bethpage and Hawthorne during the pertinent time periods.

Having failed to monitor and quantify airborne asbestos levels at Northrop’s plants during the applicable years, Northrop is hardly in a position to demand precise quantification from Mrs. Britt. On such a record, the pathology and medical records reflecting the existence and level of asbestos fibers in Mr. Britt’s lungs, coupled with his personal testimony regarding his visits to the premises and what he observed while there-followed by his undisputed death from mesothelioma— constitutes competent, substantial evidence supporting the verdict.

III. Admissibility of Dr. Finkelstein’s Expert Testimony

Northrop contends that Dr. Finkel-stein’s testimony was an “any exposure” or so-called “single fiber” expert opinion ex-cludible under either Frye or Daubert, the competing standards embroiled in the legislative amendments to the Florida Evidence Code (amending sections 90.702 and 90.704, Florida Statutes (2012)) and the Florida Supreme Court’s analysis of the constitutionality of those amendments, In re Amendments to Fla. Evidence Code, 210 So.3d 1231 (Fla. 2017). For our part, after reviewing Dr. Finkelstein’s testimony, credentials, published and authoritative literature, and opinions, we find no abuse of discretion under either of those standards in the present case.

Applying the more rigorous standard, Daubert and its codification in sections 90.702 and 90.704, the trial court in the present case discharged its duty as “gatekeeper” for proffered expert testimony. Dr. Finkelstein’s testimony established his background and experience as a physician and epidemiologist for the Ontario Department of Labor for 30 years, studying the health of workers (“particularly asbestos workers in the province”). His doctorate in experimental physics included studies of asbestos, other crystals, and asbestos fibers.

Dr. Finkelstein conducted and published studies of workers exposed to asbestos, rock dust, silica, radioactive gas (in mines in Ontario), and air pollution. He was invited to be an epidemiologist on the Asbestos Science Advisory Board established by the Environmental Protection Agency. He testified that he had published 50 to 60 peer-reviewed research papers dealing with asbestos disease.

Regarding Mr. Britt’s exposure, Dr. Finkelstein testified that “in the aggregate” Miv Britt’s presence for “at least 150 days” of exposure to asbestos at Northrop facilities was a substantial contributing cause of his ultimately-fatal mesotheli-oma. Dr. Finkelstein directly rejected Northrop’s invitation to opine that “any,” “every,” or “a single” exposure to airborne asbestos could be a contributing cause to a patient’s mesothelioma, noting that the removal of asbestos-containing insulation of the kind present in the Northrop facilities would involve millions of asbestos fibers per cubic yard of insulation, and that cumulative exposure was significant in Mr. Britt’s case.

Dr. Finkelstein’s expertise, his application of reliable methodology and peer-reviewed, published studies, and the general acceptance by the scientific community of the relationship between the inhalation of asbestos fibers and mesothelioma, distinguish the present case from the rejection, based on Daubert, of proffered “every exposure” testimony by a medical toxicologist in Crane Co. v. DeLisle, 206 So.3d 94, 103-106 (Fla. 4th DCA 2016), review granted, Case No. SC16-2182, 2017 WL 3484484 (Fla. July 11, 2017). The trial court did not abuse its discretion in admitting Dr. Finkelstein’s testimony and opinions.

IV. Dr. Somigliana’s Asbestos Fiber Analysis Report

Dr. Somigliana was not offered as an expert on causation, but rather as the medical professional who prepared a pathology report and could authenticate the report as a business record under section 90.803(6)(a), Florida Statutes (2016). Her deposition was permitted when Northrop declined to stipulate to the authenticity of the document. Trial court rulings on the admissibility of evidence such as the pathology report are reviewed for an abuse of discretion. Lewis v. Sun Time Corp., 47 So.3d 872, 874 (Fla. 3d DCA 2010).

Nor do we find that the timing of the turnover of the pathology report was violative of the pretrial order, “trial by ambush,” or so prejudicial as to warrant a new trial or other sanction. Northrop ultimately received the report, a certified translation, a summary of the methodology used in analyzing Mr. Britt’s lung tissue samples, and a deposition of Dr. Somiglia-na. And Northrop did not ask for other relief when the trial court invited counsel to let the court know if Northrop needed additional consideration of the issue following the deposition. The trial court did not abuse its discretion in admitting Dr. Som-igliana’s report.

V. Prospective Fabre Defendants

Finally, Northrop maintains that two non-party entities, Mack Trucks and Bekins, should have been included on the verdict form as Fabre defendants. Northrop argues that Mr. Britt’s testimony suggested exposure to asbestos during his visits to Mack Trucks and Bekins facilities, thereby indicating that those parties may also have been a substantial contributing cause of his mesothelioma.

This argument fails, because no evidence established that asbestos was present at the non-party sites during the time Mr. Britt visited those facilities. Mrs. Britt’s pretrial motion in limine to exclude evidence regarding prospective Fabre defendants was granted after Northrop failed to provide the trial court with-evidence that there was asbestos in any of the products for which those prospective defendants were responsible. This burden, the presentation of sufficient evidence “to prove the non-party’s liability or fault by a preponderance of the evidence,” was not satisfied by a Northrop proffer or by proof at trial.

Conclusion

Based on the foregoing analysis, the final -judgment is affirmed in all respects.

      . When the trial court granted Mrs. Britt’s motion for substitution, Northrop filed a petition for certiorari in this Court. The petition was denied without elaboration. Northrop Grumman Sys. Corp. v. Britt, 210 So.3d 64 (Fla. 3d DCA 2016) (table).

      . Mr. Britt met his wife while in the military and stationed in Italy. The couple moved to the United States, but traveled frequently to visit friends and relatives in Italy. Mr. Britt received his diagnosis and much of his treatment in Italy.

      . Samples extracted from a patient’s lymph nodes may also assist in the diagnostic process.

      . Northrop’s characterization of the listing and-delivery of the document as a "surprise disclosure on the eve of trial” overstates the sequence of events. Between the disclosure of the report and trial, Northrop was provided a certified'translation, a disclosure of the methodology used by Dr. Somigliana and her laboratory in preparing the fiber report, and a telephonic deposition of Dr. Somigliana. The trial court encouraged Northrop’s counsel to advise him if there were any remaining issues regarding access to the report and witness. Finally, Northrop’s expert, Dr. Roggli, testified that his review of the report and Dr. Somighana's testimony did not change his opinion that Mr. Britt’s mesothelioma was not asbestos-related.

      . The pertinent part of Rule 2.516(d) states that "[a]ll documents must be filed with the court either before service or immediately thereafter, unless otherwise provided for by general law or other rules.”' A suggestion of death is not exempted from the filing requirement "by general law or other rules,” and "filed with the court” plainly is not equivalent to "emailed to the. judge,” unless the judge actually files the document with the clerk of court to make it a part of the official case record. In this case, the email and letter sent to the trial judges and counsel three days after Mr. Britt’s death were not docketed.

      . Federal Rule of Civil Procedure 25(a)(1) was the original template for Florida Rule of Civil Procedure 1.260(a)(1). The term “suggested upon the record,” has been deleted from the federal provision, in favor of the simple formulation: "If the motion [for substitution] is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.” Though expressing no opinion regarding this or any other revision, we are directing the Clerk of this Court to forward a copy of this opinion to The Florida Bar’s Civil Procedure Rules Committee for consideration,

      . On this point and Northrop’s related argument regarding the admissibility of Dr. Finlt-elstein's testimony, numerous courts have recognized the inherent difficulty (if not impossibility) of precisely quantifying the details of a claimant's exposure to toxic substances in industrial settings. See, e.g., Westberry v. Gislaved Gummi AB, 178 F.3d 257, 264 (4th Cir. 1999), and Scapa Dryer Fabrics, Inc. v. Knight, 299 Ga. 286, 788 S.E.2d 421, 426 n.9 (2016).

      . Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), adopted in Florida in Bundy v. State, 471 So.2d 9 (Fla. 1985).

      . Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . McCloud v. State, 208 So.3d 668, 680 (Fla. 2016) (trial court’s decision to admit or exclude expert testimony is reviewed for an abuse of discretion).

      . Mr. Britt's actual testimony regarding his time at the Northrop facilities can be calculated at approximately 560 days; the exposure computation of “at least” 150 days occurred during the cross-examination of Dr. Finkel-stein by Northrop’s counsel.

      . The amici curiae brief of "Florida Justice Reform Institute” and "Coalition for Litigation Justice, Inc.” also challenges Dr. Finkel-stein’s causation testimony in the present case, arguing that "a scientific quantification of dose is essential in any toxic tort case,” and that anything else is unscientific and speculative. The amici, however, betray a higher level of friendship to the insurers behind the "Coalition for Litigation Justice” than to the Court or the authoritative medical literature regarding human exposure to asbestos fibers and mesothelioma.

      . See Binger v. King Pest Control, 401 So.2d 1310 (Fla. 1981).

      . Honeywell Int'l, Inc. v. Guilder, 23 So.3d 867, 870 (Fla. 3d DCA 2009).


author: BERGER, J.

text:
    DOCTOR ROOTER SUPPLY & SERVICE, etc., et al., Appellants, v. Laura MCVAY, Appellee.
    Case No. 5D14-3498
    District Court of Appeal of Florida, Fifth District.
    Opinion filed September 7, 2017

      William H. Davie, II, of The Davie Law Firm, P.A., Green Cove Springs, for Appellants.
    Adam P. Rowe, Caron Speas and Ralph Rowe, of Speas & Rowe, PLLC, Palatka, for Appellee.
   BERGER, J.

Doctor Rooter Supply & Service, Inc. (Doctor Rooter) and Thomas J. Wall appeal the trial court’s final order granting summary judgment in favor of Laura McVay. We reverse.

Doctor Rooter is a plumbing company that was owned by Thomas Wall and Laura McVay while they were married. They divorced in October 2012, at which time Thomas was given full ownership of the company. As a part of their divorce proceedings, Thomas and Laura executed a Consent Final Judgment. The Consent Final Judgment included a release of all claims that Thomas and Laura had or could have had against each other.

After the divorce was final, Thomas allegedly discovered that Laura had taken approximately $116,000 from Doctor Rooter between 2007 and 2011 while she was the office manager. In 2018, Doctor Rooter and Thomas sued Laura for conversion, embezzlement, breach of fiduciary duty, and civil theft. In Laura’s answer to the complaint, she cited numerous affirmative defenses, based mostly on the Consent Final Judgment entered in the dissolution case. Of relevance are Laura’s first, second, third, fourth, fifth, and tenth affirmative defenses.

In her first affirmative defense, Laura claimed “that the causes of action alleged in the Amended Complaint were released and waived by the Plaintiffs when the parties hereto executed the Consent Final Judgment of Dissolution of Marriage.” In her second affirmative defense, Laura claimed that res judicata barred this action because the civil theft claims should have been brought in the dissolution case. Laura’s third and fourth affirmative defenses alleged that the civil theft case actually involved the dissipation of marital assets and, as such, it should have been brought in family court. She, therefore, argued that the civil court lacked jurisdiction to consider the civil theft matter and that Thomas and Doctor Rooter lacked standing to bring the case. Laura’s fifth affirmative defense alleged that the civil theft claims were waived because they were compulsory counterclaims in the dissolution case and they were not' raised in the answer. Finally, in her tenth affirmative defense, Laura contended that the civil theft case could not proceed because, as a co-owner of Doctor Rooter, she could not be liable for stealing from herself.

Laura moved for summary judgment, arguing that the release language was dis-positive and that Thomas and Doctor Rooter’s claims were barred by the doctrine of res judicata. After a hearing, the trial court agreed and granted summary judgment in Laura’s favor on the affirmative defenses outlined above.

In its Pinal Order, the court specifically found that Thomas and Laura were the only owners or equity holders in Doctor Rooter and that they treated Doctor Rooter as a marital asset during the dissolution proceedings. The court also found that Thomas and Laura mutually released any claims they had or could have had against eá'ch other as part of the consideration for the' Consent Pinal' Judgment, and thus, Thomas was precluded from bringing the action. Additionally, the court found that res judicata prevented the causes of action set forth in the amended complaint because they were previously decided in the dissolution matter and‘the dissolution of marriage statute is the exclusive remedy available to Thomas in this case because Laura was alleged to have dissipated marital assets. As such, the court found that it did not have jurisdiction over the matter. Also, based on the trial court’s finding that the dissolution statutes controlled, it concluded that Doctor. Rooter and Thomas lacked standing to bring the cause of action for civil theft. •

A trial court’s order granting summary judgment is reviewed de novo. Suker v. White Fam. Ltd. P’ship, 193 So.3d 1028, 1029 (Pla. 4th DCA 2016) (quoting Burton v. MDC PGA Plaza Corp., 78 So.3d 732, 733 (Fla. 4th DCA 2012)). In reviewing a court’s decision .to enter summary, judgment, an appellate court “must consider all record evidence in a light most favorable to the non-moving party. If material facts are at issue and the slightest doubt exists, summary judgment must be reversed.” Mills v. State Farm Mut. Auto. Ins. Co., 27 So.3d 95, 96 (Fla. 1st DCA 2009) (citing Hancock v. Dep’t of Corr., 585 So.2d 1068 (Fla. 1st DCA 1991)).

Doctor Rooter and Thomas raise four issues on appeal, three of which have merit, First, they argue that the trial court erred in finding that.the assets of Doctor Rooter, a duly formed corporation, are actually assets directly owned by its shareholders, Thomas and Laura, and, thus, any assets Laura allegedly took from Doctor Rooter were marital assets; They further argue that the trial court’s mischaracteri-zation of the theft as a dissipation of marital assets caused it to erroneously conclude that exclusive jurisdiction belonged in family court and that Doctor Rooter and Thomas did not have standing to bring the claim. Next, they argue that the trial court erred in holding that Doctor Rooter was bound by the release in the divorce proceeding when it was not a party to the proceeding, and therefore, res judicata and waiver did not bar the claims. Finally, Doctor Rooter and Thomas argue that questions of fact remain regarding the intent and understanding of Thomas and Laura when, they executed .the Consent Final Judgment that preclude entry, of summary judgment. We will address each in turn.

As this Court has previously explained, a “stockholder’s interest in a corporation is limited to the legal rights flowing from the ownership of capital stock. Those rights do not include a pro-rata interest in corporate assets.” Anson v. Anson, 772 So.2d 52, 54 (Fla. 5th DCA 2000). In fact, the corporation is á separate, legally recognized entity that holds title to its assets. Id Although a corporation that is owned by both spouses is a marital asset, see Thibault v. Thibault, 668 So.2d 237, 238 (Fla. 1st DCA 1996), the corporation’s earnings are hot marital assets. Instead, assets that are “acquired through corporate earnings are corporate assets until payments are made for services or as dividends.” Anson, 772 So.2d at 54.

Doctor Roráer is a Florida corporation that was formed by the parties during their marriage. While they were married, Thomas owned 80% of the company’s stock and Laura owned 20%. Even though Thomas and Laura were the only shareholders, Doctor Rooter was a separate legal entity and its earnings belonged to the corporation until such time as Thomas and Laura received payments from it. See id. Therefore, Laura was not entitled to take money from Doctor Rooter until she received payments from the company either for services or as dividends. See id.

While Laura maintains that taking money from the company merely constituted the dissipation of marital assets, the record is not particularly clear on this point. Dissipation of marital assets occurs when “one spouse uses marital funds for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.” Romano v. Romano, 632 So.2d 207, 210 (Fla. 4th DCA 1994) (quoting Gentile v. Gentile, 565 So.2d 820, 823 (Fla. 4th DCA 1990) (emphasis omitted)). In this instance, Thomas alleged that Laura took money from Doctor Rooter between 2007 and 2011 while she was working there. According to the amended complaint, when Laura took that money, it belonged to the company and was not considered to be a part of their marital funds. As such, it cannot be said that taking money from Doctor Rooter constituted the dissipation of marital assets as opposed to theft from the company. See Lopez v. Lopez, 135 So.3d 326, 329 (Fla. 5th DCA 2013) (explaining that to qualify as' dissipation Of marital assets, misconduct must be intentional destruction of asset for party’s own benefit and used for purpose unrelated -to marriage).

Because Laura’s actions do not fit within the definition of dissipation of marital assets, the dissolution statute is not the exclusive remedy available to Doctor Rooter and Thomas for Laura’s alleged theft. See Beers v. Beers, 724 So.2d 109, 117 (Fla. 5th DCA 1998) (explaining that chapter 61, Florida Statutes, provides exclusive remedy when one spouse has intentionally dissipated marital property during the marriage where no specific transaction or agreement exists between the spouses). Therefore, contrary to the trial court’s findings, the family law court did not haye exclusive jurisdiction to consider the theft claims. Accordingly, Doctor Rooter and Thomas had standing to bring the instant claims outside of family court, and the trial court’s conclusion otherwise was error.

For the same reason, the trial court also erred when it concluded Laura could not be held liable for stealing from herself. In Florida, when a corporation has more than one shareholder, an officer/shareholder has a fiduciary duty to all shareholders. Zold v. Zold, 880 So.2d 779, 780 (Fla. 5th DCA 2004). In other., words, the corporation “is not the personal .piggy bank for any one shareholder.” Id. at 781.

Here, it is undisputed' that Thomas and Laura were the only two shareholders with an interest in Doctor Rooter at the time Laura allegedly stole from it. However, the fact that they were married and the only two shareholders does not change the fact that Laura owed a fiduciary duty to Doctor Rooter and to Thomas. See id. at 780. Moreover, Laura was not entitled to remove funds from Doctor Rooter because, at the time of the alleged theft, the funds were assets of the corporation and not marital assets to which she was entitled. See Anson, 772 So.2d at 54. Under these circumstances, Laura was not merely stealing from herself as the lower court found. Instead, she was stealing from Doctor Rooter and Thomas. Thus, she could be held liable for civil theft and the other claims in the amended complaint. See Dep’t of Ins. v. Blackburn, 633 So.2d 521, 524 (Fla. 2d DCA 1994) (rejecting sole shareholder’s argument that he was stealing from himself and finding that receiver could bring claim for breach of fiduciary duty and civil theft against him because other creditors and policy holders may have been divested of money he took). Consequently, summary judgment was improperly granted on Laura’s claim that she could not be held liable for stealing from herself.

Doctor Rooter and Thomas next argue that the trial court erred in holding that Doctor Rooter was' bound by the release in the divorce proceeding as it was not a party to the proceeding and therefore, res judicata and waiver did not bar their claims. As the Florida Supreme Court explained, “[t]he foundation of res judicata is that a final judgment in a court of competent jurisdiction is absolute and settles all issues actually litigated in a proceeding as well as those issues that could have been litigated.” Engle v. Liggett Grp., Inc., 945 So.2d 1246, 1259 (Fla. 2006). The Supreme Court further described res judicata as follows:

A judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action.

Id. (quoting Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla. 2001) (emphasis omitted)).

Contrary to the trial court’s conclusion otherwise, res judicata would not bar Doctor Rooter’s and Thomas’ civil theft claims against Laura because the theft case and the dissolution proceedings are not based upon the same cause of action. This fact remains even if Doctor Rooter were a party to the dissolution proceeding because the dissolution case only involved matters stemming from Thomas and Laura’s divorce and did not include claims regarding Laura taking money from Doctor Rooter.

Moreover, questions of fact remain over Laura’s res judicata defense. According to the amended complaint, Thomas learned about Laura’s theft from Doctor Rooter after an audit was completed in 2013, which was after the parties’ divorce was finalized in October 2012. Laura’s affidavit, on the other hand, indicates that Thomas threatened to sue her for civil theft during their divorce proceedings. Thus, a question of fact remains' about when Doctor Rooter and Thomas learned of the theft and whether they could have brought the claim as a part of the divorce proceedings. As such, it was improper for the trial court to enter summary judgment on Laura’s res judicata defense.

Laura’s argument that Thomas and Doctor Rooter released and waived them civil theft claim by signing the Consent Final Judgment also fails. To establish waiver, a party must show: “(1) the existence at the time of the waiver of a right, privilege, advantage, or benefit which may be waived; (2) the actual or constructive knowledge of the right; and (3) the intention to relinquish the right.” Goodwin v. Blu Murray Ins. Agency, Inc., 939 So.2d 1098, 1104 (Fla. 5th DCA 2006) (citing Zurstrassen v. Stonier, 786 So.2d 65, 70 (Fla. 4th DCA 2001)). When a claim of waiver is based on a release contained in a contract, the reviewing court must construe the release and determine the intent of the parties by reviewing the entire instrument. Cerniglia v. Cerniglia, 679 So.2d 1160, 1164 (Fla. 1996). Like any other contract, “where the language of a release is clear and unambiguous a court cannot entertain evidence contrary to its plain meaning.” Id. (citing Sheen v. Lyon, 485 So.2d 422, 424 (Fla. 1986)).

Here, paragraph 18 of the Consent Final Judgment reads as follows:

18) EFFECTIVE DATE OF AGREEMENT HEREIN, ENTIRE AGREEMENT AND NON-MERGER: Both parties had acknowledged that the agreement contained in this Consent Final Judgment shall be enforceable and binding upon the parties as of the date the last party signed this document below .... Further, by signing this Agreement, the parties have agreed that his [sic] document shall be construed and enforceable as a Settlement Agreement whether entered as an order of the Court or not. That is, they each have agreed to be bound by terms of this Agreement and each has acknowledged that he/she has agreed to the same for good and valuable consideration. The parties have agreed that this Agreement constitutes a full and final settlement of all pending and current issues between them and they hereby each release each other from any claims which could have been resolved in this action of [sic] in this Judgment, except as provided herein. The parties have agreed that once this Consent Final Judgment is entered by the Court, the agreement ... shall remain separately enforceable as a binding agreement between the parties ....

(Emphasis added). Thomas and Laura, their attorneys, and the family court judge are the only people who signed the Consent Final Judgment. No one signed it on behalf of Doctor Rooter. As such, because it is clear that Thomas and Laura are the only parties to the Consent Final Judgment, they are the only parties bound by the release in paragraph 18. Therefore, Doctor Rooter was free to bring the theft suit against Laura.

Regardless, summary judgment on the waiver issue was improper because material issues of fact remain. The release states that it covers “any claims which could have been resolved in this action [or] in this Judgment.” As stated earlier, there is conflicting evidence regarding when Doctor Rooter and Thomas learned about the civil theft. According to Laura, they- learned about it while the divorce was pending. However, Thomas claims that they learned of the embezzlement after the divorce was final. If Thomas is believed, Doctor Rooter and Thomas could not have brought the theft claim as a part of the divorce because they did not know about it. Therefore, summary judgment should not have been granted on this basis. See Scheibe v. Bank of Am., N.A., 822 So.2d 575, 575 (Fla. 5th DCA 2002) (finding . summary judgment improperly granted on waiver issue where questions of fact remain); Parker v. Dinsmore Co., 443 So.2d 356, 358 (Fla. 1st DCA 1983) (reversing entry of summary judgment where questions of fact remain on waiver.issue).

For the reasons stated above, we conclude the trial court erred in granting summary judgment on Laura’s first, second, third, fourth, fifth, and tenth affirmative defenses. Accordingly, we reverse the final order under review and remand for further proceedings.

REVERSED and REMANDED.

EDWARDS, J. and JACOBUS, B.W., Senior Judge, concur.

      . Laura disputes the allegation that she stole money from the company.

      . Based on the facts of this case, we reject as meritless the claim that the trial court erred ra granting summary judgment before discovery was complete.

      . We cannot tell, based on the record before us, whether Laura used the funds for purposes unrelated to the marriage or if the taldngs occurred during “a time when the marriage [was] undergoing an irreconcilable breakdown.” Romano, 632 So.2d at 210 (quoting Gentile, 565 So.2d at 823).

      . The trial court's reliance on Hinkle v. State, 355 So.2d 465, 467 (Fla. 3d DCA 1978) (holding "a co-owner of a joint bank account cannot be guilty of larceny of funds held in the joint account[]”) (citation omitted), Russ v. State, 830 So.2d 268, 270 (Fla. 1st DCA 2002) ("A co-owner of property cannot be held guilty of larceny of such property unless the other co-owner has a superior legal interest that authorizes the withholding of the property.” (citation omitted)), and Dimuccio v. D’Ambra, 750 F.Supp. 495, 501 (M.D. Fla. 1990) (concluding plaintiffs’ allegations did not meet the elements of civil theft because the party who took the money was a co-owner of the property), is misplaced. Contrary to the trial court's findings, these cases are distinguishable and do not support summary judgment. None of the cases involve a shareholder of a closely held corporation being sued for civil theft for taking money from the corporation. Rather, they simply stand for the proposition that a co-owner of property cannot be held liable for taking that property when he has a superior legal interest in the property.

      . If Thomas knew about the theft during the divorce, it is possible res judicata could bar the theft claim. If, however, Thomas learned of the theft in 2013, he could not have brought the claim during the divorce and res judicata would not bar the claim.

      . A party’s failure to raise a compulsory counterclaim will result in the waiver of that claim. Londono v. Turkey Creek, Inc., 609 So.2d 14, 18 (Fla. 1992). In this case, the trial court determined that the claims for conversion, embezzlement, breach of fiduciary duty, and civil theft .were compulsory counterclaims in the dissolution of marriage case and were waived because they were not raised as counterclaims in that case. However, the claims in the amended complaint would be compulsory counterclaims to the dissolution case only if they' arose from the same aggregate facts. See id. Here, the theft claims brought in the amended complaint have no logical relationship to the dissolution case, which arose from Thomas and Laura’s inability to remain married. Thus, it was error for the lower court to find that they were waived by Thomas' failure to- raise them in the divorce proceeding.


author: PER CURIAM.

text:
    Marcus GAYNOR, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4841
    District Court of Appeal of Florida, Second District.
    Opinion filed September 15, 2017
    Marcus Gaynor, pro se.
   PER CURIAM.

Marcus Gaynor appeals the' summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We affirm the denial without comment but remand for correction of a scrivener’s error. See Stevens v. State, 114 So.3d 485, 485 (Fla. 2d DCA 2013); Richardson v. State, 787 So.2d 197, 198 (Fla. 2d DCA 2001).

Our review of the record reveals a scrivener’s error in the amended judgment entered October 20, 2015. The amended judgment erroneously reflects that Gaynor was convicted in counts two and three of attempted sexual battery instead of sexual battery as is indicated on the jury’s written verdict form. Accordingly, we remand for correction of the scrivener’s error in the amended judgment.

Affirmed; remanded with directions.

CASANUEVA, BLACK, and SLEET, JJ., Concur.


text:
    John Emanuel OSEI, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-5828
    District Court of Appeal of Florida, First District.
    Opinion filed September 20, 2017
    Caleb D. Rowland and William M. Blume of Blume and Rowland, PLLC, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant was convicted of possession of firearm by a convicted felon and aggravated assault and was sentenced to a total of 35 years in prison with consecutive mandatory minimum terms under the 10-20-Life statute. Appellant did not challenge his sentences on direct appeal, case number 1D13-3414, and they became final on June 10, 2014, when the mandate issued that case.

In May 2016, Appellant filed a motion for postconviction relief - under Florida Rule of Criminal Procedure 3.850 in which he argued that he was entitled to a new sentencing hearing because contrary to the trial court’s belief that it was required to impose the mandatory minimum terms consecutively, the Florida Supreme Court held in Williams v. State, 186 So.3d 989, 993 (Fla. 2016), that consecutive mandatory minimum terms are “permissible but not mandatory” where multiple firearm offenses are committed contemporaneously and multiple victims are shot at. The trial court denied the motion, concluding that Williams does not apply retroactively. We agree with the trial court.

In Witt v. State, 387 So.2d 922 (Fla. 1980), the Florida Supreme Court held that a change in the law does not apply retroactively “unless the change: (a) emanates from [the Florida Supreme Court] or the United States Supreme Court, (b) is constitutional in nature, and (c) constitutes a development of fundamental significance.” A decision must satisfy all three of these prongs before it can be applied retroactively to a case that was already final.

Williams satisfies the first prong of Witt because it was decided by the Florida Supreme Court. But, Williams does not satisfy the second prong of Witt because it only involved an issue of statutory interpretation, see Williams, 186 So.3d at 991-95, and was not “constitutional in nature.” Accordingly, Williams does not apply retroactively to cases such as Appellant’s that were final when Williams was decided.

For these reasons, we affirm the order denying Appellant’s motion for postconviction relief.

AFFIRMED.

ROBERTS, WETHERELL, and ROWE, JJ., CONCUR.


text:
    Alexander M. ALBRITTON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-2776
    District Court of Appeal of Florida, First District.
    Opinion filed September 20, 2017.
    Alexander M. Albritton, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this post-Miller appeal, Alexander M. Albritton challenges his mandatory life sentence for first-degree murder because he was allegedly sixteen years old at the time the crime was committed. The trial court summarily denied Albritton’s motion for post-conviction relief, concluding that Miller is inapplicable because Albritton is parole eligible after twenty-five years.

In light of the Florida Supreme Court’s intervening decision in Atwell v. State, 197 So.3d 1040 (Fla. 2016), we hold that Albritton is entitled to resentencing pursuant to the provisions of chapter 2014-220, Laws of Florida, if the trial court determines that Albritton’s allegation concerning his juvenile status at the time of the crime is correct. See Reid v. State, 42 Fla. L. Weekly D1216, — So.3d —, 2017 WL 2348615 (Fla. 3d DCA May 31, 2017) (“[W]e read Atwell to reject the notion that Florida’s current parole scheme provides the individualized consideration of a defendant’s juvenile status required under Miller.”); Michel v. State, 204 So.3d 101, 101 (Fla. 4th DCA 2016) (certifying conflict with Stallings v. State, 198 So.3d 1081 (Fla. 5th DCA 2016), and Williams v. State, 198 So.3d 1084 (Fla. 5th DCA 2016), “to the extent that those decisions suggest that relief under Atwell is dependent on the defendant’s presumptive parole release date.”).

We therefore remand for the trial court to conduct such proceedings as are necessary to determine whether Albritton was a juvenile at the time of the offense, and if so, to resentence him for his first-degree murder conviction pursuant to chapter 2014-220, Laws of Florida, which has been codified in sections 775.082, 921.1401, and 921.1402, Florida Statutes. See Atwell, 197 So.3d at 1050.

REVERSED and REMANDED with instructions.

WOLF, RAY, and BILBREY, JJ., CONCUR.

      . Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (holding that a mandatory life without parole sentence for juvenile homicide offenders violates the Eighth Amendment’s prohibition on cruel and unusual punishments).

      . The conflict is under review by the Florida Supreme Court. State v. Michel, Case No. SC16-2187, 2017 WL 3484282 (Fla. Jan. 18, 2017).


text:
    Monterrance WOODARD, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0343
    District Court of Appeal of Florida, First District.
    Opinion filed September 25, 2017
    Monterrance Woodard, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Charlie Lee and Jennifer Moore, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

MAKAR, OSTERHAUS, and WINOKUR, JJ., CONCUR.


text:
    Bobby L. MAGWOOD, Petitioner, v. John PALMER, Warden, Respondent.
    CASE NO. 1D16-3379
    District Court of Appeal of Florida, First District.
    Opinion filed September 25, 2017
    Bobby L. Magwood, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Brett Coleman, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is DENIED on the merits.

LEWIS, KELSEY, and M.K. THOMAS, JJ., CONCUR


text:
    Larry MANNING, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
    CASE NO. 1D16-4828
    District Court of Appeal of Florida, First District.
    Opinion filed September 26, 2017
    Larry Manning, pro se, Petitioner.
    Rana Wallace, General Counsel, and Mark Hiers, Assistant General Counsel, Florida Commission on Offender Review, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits.

B.L. THOMAS, C.J., and LEWIS and ROWE, JJ., CONCUR. .


author: PER CURIAM..

text:
    Julius KNOTT, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-0989
    District Court of Appeal of Florida, First District.
    Opinion filed September 26, 2017
    Julius Knott, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM..

DISMISSED. See Lopez v. State, 688 So.2d 931, 932 (Fla. 1994).

ROWE, MAKAR, and BILBREY, JJ., CONCUR.


text:
    Calvin Evans BROUGHTON, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2171
    District Court of Appeal of Florida, First District.
    Opinion filed September 26, 2017
    Calvin Evans Broughton, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied on the merits.

ROWE, MAKAR, and BILBREY, JJ., CONCUR.


text:
    Thomas W. HUSSEY, Appellant, v. UNIVERSITY OF FLORIDA BOARD OF TRUSTEES, as the Public Body Corporate of University of Florida, Through Its College of Medicine— Jacksonville, Appellee.
    CASE NO. 1D17-2658
    District Court of Appeal of Florida, First District.
    Opinion filed September 27, 2017
    Linda R. Edwards, M.D., Senior Associate for Educational Affairs, Designated Institutional Official.
    Richard F. Hussey, Fort Lauderdale, for Appellant.
    Ryan R. Fuller and Thomas William Young, University of Florida, Office of the General Counsel, Gainesville, for Appellee.
   PER CURIAM.

Appellant seeks review of a final administrative decision of the University of Florida, College of Medicine—Jacksonville, to terminate him from its oral and maxillofa-cial surgery residency program. This decision is reviewable by petition for writ of certiorari filed with the appropriate circuit court. See Decker v. University of West Fla., 85 So.3d 571 (Fla. 1st DCA 2012) (holding that review of quasi-judicial decision of administrative body not subject to the Administrative Procedure Act is by petition for writ of certiorari to the circuit court).

Appellant has initiated review by petition for writ of certiorari in the Eighth Judicial Circuit in and for Alachua County. Review is pending in case number 2017 CA 2390. Accordingly, Appellee’s motion to dismiss, filed on July 25, 2017, is granted, and this appeal is dismissed.

LEWIS, ROWE, and RAY, JJ., CONCUR.


text:
    Katherine Hiett VIKER, Appellant, v. Arthur Collin CHERRY, Appellee.
    CASE NO. 1D17-2865
    District Court of Appeal of Florida, First District.
    Opinion filed September 27, 2017
    Emilian “Ian” Bueataru, Tallahassee, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

The Court has determined that the May 5, 2017, order partially ruling on a petition to modify parenting schedule and child support is not a final order. See Hoffman v. O’Connor, 802 So.2d 1197 (Fla. 1st DCA 2002). Furthermore, although the order was subject to immediate appellate review pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)b., appellant failed to invoke the Court’s jurisdiction to review the order in a timely manner. Ward v. Bragg, 957 So.2d 670 (Fla. 1st DCA 2007) (holding that rehearing of a non-final order is not authorized and does not delay rendition). Accordingly, the appeal is dismissed for lack of jurisdiction.

BILBREY, WINSOR, and M.K. THOMAS, JJ., CONCUR.


text:
    Christopher BOWDEN, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-2226
    District Court of Appeal of Florida, First District.
    Opinion filed September 28, 2017
    Christopher Bowden, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied. See Munn v. Florida Parole Commission, 807 So.2d 733 (Fla. 1st DCA 2002).

ROBERTS, KELSEY, and JAY, JJ., CONCUR.


text:
    Brittany KNIGHT, Petitioner, v. STATE of Florida; Sheriff for Leon County, Florida, Respondent.
    CASE NO. 1D17-1832
    District Court of Appeal of Florida, First District.
    Opinion filed October 2, 2017.

      Andy Thomas, Public Defender, and L. Allen Beard and Carrie McMullen, Assistant Public Defenders, Tallahassee; Benjamin James Stevenson, ACLU Pound, of Fla., Pensacola; and Nancy Abudu and Jacqueline Nicole Azis, ACLU Pound, of Fla., Miami, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied. See Dyson v. Campbell, 921 So.2d 692, 693 (Fla. 1st DCA 2006) (explaining that bail is not per se excessive or unreasonable simply because the defendant is unable to pay it and that trial court must consider a host of other factors in addition to a defendant’s financial resources in determining what conditions for pretrial release are appropriate).

WETHERELL, RAY, and MAKAR, JJ., CONCUR.


text:
    A.P., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2813
    District Court of Appeal of Florida, Third District.
    Opinion filed October 4, 2017.
    Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant Attorney General, for appellee.
    Before LOGUE, LUCK and LINDSEY, JJ.
   ON CONFESSION OF ERROR

PER CURIAM.

Based on the state’s proper confession of error, with which we agree, we reverse the part of the trial court’s order withholding adjudication of delinquency, and placing A.P. on probation, for grand theft and burglary of an unoccupied conveyance, and remand for entry of judgment of dismissal as to these charges. See J.E.P. v. State, 561 So.2d 10, 11 (Fla. 3d DCA 1990) (reversing adjudication of delinquency where “[tjhere is insufficient evidence to establish that the van J.E.P. was attempting to jump-start was the same van charged in the information”); C.O. v. State, 557 So.2d 637, 638 (Fla. 3d DCA 1990) (reversing adjudication of delinquency where “[tjhere is no evidence establishing that the white 1985 Toyota Camry stolen from Ms. Dixon at the 163rd Street shopping center on January 14th was the same vehicle as the white, four door car which Mr. August observed C.O. driving at 7742 N.W. 5th Court on January 15th”); J.G. v. State, 539 So.2d 39, 40 (Fla. 3d DCA 1989) (“We reverse J.G.’s adjudications of delinquency and remand the cause to the trial court with directions to enter judgments of acquittal based upon the state’s failure to establish ownership of the automobile which J.G. was charged with burglarizing and failure to establish ownership of the automobile parts which J.G. was charged with stealing.”); C.B. v. State, 519 So.2d 686, 687 (Fla. 3d DCA 1988) (“[T]he motion for a judgment of acquittal should have been granted because the evidence as to proof of ownership of the automobile which the appellant was charged with attempting to burglarize was woefully deficient to support the finding that the appellant had committed such attempted burglary.”). AP, does not- appeal, and the state does not confess error as to, the part of the trial court’s order withholding adjudication of delinquency and placing him on probation for resisting a law enforcement officer without violence. That part of the trial court’s order stands as unaffected by this appéal.

Reversed and remanded with instructions.


text:
    Ryan ESCOBAR, Appellant, v. TOWER HILL SIGNATURE INSURANCE COMPANY, Appellee.
    No. 3D16-1844
    District Court of Appeal of Florida, Third District.
    Opinion filed October 4, 2017.
    Mintz Truppman, P.A., and Timothy H. Crutchfield, for appellant.
    Methe & Rockenbach, P.A., and Kara Berard Rockenbach and David A. Noel (West Palm Beach), for appellee.
    Ver Ploeg & Lumpkin, P.A., and Stephen A. Marino, Jr., Benjamin C. Hasse-brock and Andrew M.- Shapiro, for United Policyholders, as amicus curiae.
    Before FERNANDEZ, LOGUE and SCALES, JJ.
   ON CONFESSION OF ERROR

PER CURIAM.

Ryan Escobar, the plaintiff below, appeals an order granting final summary judgment in favor of his insurer, Tower Hill Signature Insurance Company. Upon Tower' Hill’s commendable confession of error, and because genuine issues of material fact exist as to the amount of the actual' cask value of the insured loss at hand, we reverse the final summary judgment and remand the case to the trial court for further proceedings. See § 627.7011(3)(a), Fla. Stat. (2016) (“In the event of a loss for which a dwelling ... is insured on the basis of replacement costs ... the insurer must initially pay at least the actual cash value of the insured loss, less any applicable deductible.”); Siegel v. Tower Hill Signature Ins. Co., 3D16-1861, 225 So.3d 974, 978, 2017 WL 3722502, at *4 (Fla. 3d DCA Aug. 30, 2017) (reversing final summary judgment in favor of Tower Hill, concluding “[w]e find no support in Slayton[ v. Universal Property and Casualty Insurance Co., 103 So.3d 934 (Fla. 5th DCA 2012) ]—or any other authority Tower Hill cites—for the proposition that the insurer is able 'to unilaterally determine, as a matter of law, actual cash value or replacement cost value” by simply paying its own independent adjuster’s estimate of the insured loss, less the deductible) (footnote omitted); Francis v. Tower Hill Prime Ins. Co., 224 So.3d 259 (Fla. 3d DCA 2017) (reversing final summary judgment in favor of insurer where “widely-divergent estimates of covered repair costs created a genuine issue of material fact precluding summary judgment regarding the roof leak claims,” expressly rejecting insurer’s argument that its payment of its own adjuster’s estimate less the deductible entitled it to summary judgment under Slay-ton).

Reversed and remanded.


text:
    Martha ZAMORA and Odilio P. Fuentes, Appellants, v. TOWER HILL PRIME INSURANCE COMPANY, Appellee.
    No. 3D16-1917
    District Court of Appeal of Florida, Third District.
    Opinion filed October 4, 2017.
    David B. Pakula, P.A., and David B. Pakula (Pembroke Pines); Perry & Neb-lett, P.A., and David A. Neblett and Jack Wynn, for appellants.
    Methe & Rockenbach, P.A., and Kara Berard Rockenbach (West Palm Beach), for appellee.
    Before LOGUE, LUCK and LINDSEY, JJ.
   ON CONFESSION OF ERROR

PER CURIAM.

Martha Zamora and Odilio P. Fuentes, the plaintiffs below, appeal an order granting'final summary judgment in favor of their insurer, Tower Hill Prime Insurance Company. Upon Tower Hill’s commendable confession of error, and because genuine issues of material fact exist as to the amount of the actual cash value of the insured loss at hand, we reverse the final summary judgment and remand the case to the trial court for further proceedings. See § 627.7011(3)(a), Fla. Stat. (2016); Siegel v. Tower Hill Signature Ins. Co., 3D16-1861, 225 So.3d 974, 977, 2017 WL 3722502, at *3 (Fla. 3d DCA Aug. 30, 2017); Francis v. Tower Hill Prime Ins. Co., 224 So.3d 259 (Fla. 3d DCA 2017).

Reversed and remanded.