text:
    CITY OF ST. PETERSBURG, Appellant/Cross-Appellee, v. Bruce WRIGHT, Appellee/Cross-Appellant.
    Case No. 2D16-3361
    District Court of Appeal of Florida, Second District.
    Opinion filed February 14, 2018
    Kenneth W. MacCollom, Assistant City Attorney of the Office of the City Attorney, St. Petersburg, for Appellant/ Cross-Appellee.
    Kirsten Anderson and Jodi Siegel of Southern Legal Counsel, Inc., Gainesville, and Alice K. Nelson of Nelson Law Group, Tampa, for Appellee/Cross Appellant.
    Paul M. Crochet of Weber, Crabb & Wein, P.A., St. Petersburg, for Amicus Curiae First Amendment Foundation, Inc.
   NORTHCUTT, Judge.

The Reverend Bruce Wright filed a lawsuit seeking injunctive relief and a declaratory judgment against the City of St. Petersburg, alleging among other things that St. Petersburg's city council had violated Florida's Government in the Sunshine Law, section 286.011 (2012). On Wright's motion for summary judgment, the circuit court ruled that the council did not break the law during a private strategy session with the City's attorneys, known in common Sunshine Law parlance as a "shade" meeting. But the court held that the council members did violate statutory notice requirements when, upon emerging from their shade meeting with the attorneys, they took up and voted to approve an ordinance amendment that had been discussed during that meeting. The court voided the amendment on that ground.

The City has appealed the final summary judgment, and Wright has cross-appealed. Without further comment, we affirm the judgment insofar as it held that the council violated the notice requirements. We reverse the holding that the City did not violate the Sunshine Law during the private attorney-client session.

The offending shade meeting was precipitated by developments in federal litigation filed under 42 U.S.C. § 1983, by four homeless plaintiffs who challenged the constitutionality of the City's trespass ordinance. The federal district court dismissed all of the plaintiffs' claims. Catron v. City of St. Petersburg, 658 F.3d 1260, 1264 (11th Cir. 2011). The Eleventh Circuit Court of Appeals affirmed the dismissal of all but two of the claims. Id. at 1273. The court concluded that the plaintiffs had pleaded a viable claim that section 20-30 of the trespass ordinance, regarding the issuance of trespass warnings, violated procedural due process because it did not provide a "way to contest the trespass warning or at least the scope of the warning." Id. at 1269. The court also held that the district court should not have dismissed the plaintiffs' claim that the City's policy of enforcing the ordinance on public sidewalks violated the plaintiffs'

right to intrastate travel and freedom of movement under the Florida Constitution. Id. at 1270-71. The court remanded the case to the district court for further proceedings.

The Eleventh Circuit issued its Catron opinion on September 28, 2011. Thereafter, the shade session at issue was placed on the agenda for the city council's meeting on October 13. It was to be attended only by the council members, the mayor, the city attorney, two assistant city attorneys, and a court reporter. During the private session, an assistant city attorney advised the council that if it amended the trespass ordinance to correct the complained-of deficiencies before the Catron case returned to the district court, the City could seek to the have the suit dismissed as moot. In that event, the City would argue that the plaintiffs were not prevailing parties entitled to recover attorney's fees.

As mentioned, when the council emerged from the shade session and resumed the October 13 public meeting, it approved an amendment to the trespass ordinance on first reading. On October 18, the City petitioned the Eleventh Circuit to rehear the Catron case en banc. While that petition was pending, on November 3 the city council voted final approval of the trespass ordinance amendment. The Eleventh Circuit denied rehearing en banc on November 29 and issued its mandate on December 13. Three days later, the City filed in the district court a motion to dismiss the Catron lawsuit on the ground that the recent amendment of the trespassing ordinance rendered the case moot. The lawsuit was ultimately dismissed.

Wright filed the instant proceeding in November 2013, contending among other things that the trespass warning section of St. Petersburg's trespass ordinance is invalid because it was conceived at the October 13, 2011, nonpublic shade session in violation of Florida law. We agree.

The purpose of Florida's Government in the Sunshine Law is the protection of the public's right to be present and to be heard during all phases of enactments by government boards and commissions. Sch. Bd. of Duval Cty. v. Fla. Publ'g Co., 670 So.2d 99, 101 (Fla. 1st DCA 1996). It functions "to prevent at nonpublic meetings the crystallization of secret decisions to a point just short of ceremonial acceptance." Monroe Cty. v. Pigeon Key Historical Park, Inc., 647 So.2d 857, 860 (Fla. 3d DCA 1994) (quoting Town of Palm Beach v. Gradison, 296 So.2d 473, 477 (Fla.1974) ). Section 286.011(1), Florida Statutes (2011), mandates:

All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, including meetings with or attended by any person elected to such board or commission, but who has not yet taken office, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings.

The supreme court has observed that the "obvious intent [of the legislature] was to cover any gathering of the members where the members deal with some matter on which foreseeable action will be taken by the board." Bd. of Pub. Instruction of Broward Cty. v. Doran, 224 So.2d 693, 698 (Fla. 1969).

As we discussed in Anderson v. City of St. Pete Beach, 161 So.3d 548, 552 (Fla. 2d DCA 2014), there is a limited exemption from the open meeting requirement for meetings between a public body and its attorney. Section 286.011(8) states in pertinent part:

Notwithstanding the provisions of subsection (1), any board or commission of any state agency or authority or any agency or authority of any county, municipal corporation, or political subdivision, and the chief administrative or executive officer of the governmental entity, may meet in private with the entity's attorney to discuss pending litigation to which the entity is presently a party before a court or administrative agency, provided that the following conditions are met:
(a) The entity's attorney shall advise the entity at a public meeting that he or she desires advice concerning the litigation.
(b) The subject matter of the meeting shall be confined to settlement negotiations or strategy sessions related to litigation expenditures.

(Emphasis supplied.) "As is plain from the language of the statute, the exemption is limited to discussions involving the actual settlement of presently pending litigation." Anderson, 161 So.3d at 553.

Here, the transcript of the October 13, 2011, shade meeting reflects that the participants did not limit themselves to discussing settlement or litigation expenditures in the Catron case. To the contrary, there was only a brief discussion of how the City might avoid paying attorney's fees to the plaintiffs. The great majority of the discussion involved the specifics of a proposed amendment to section 20-30 of the trespass ordinance and of the need to quickly resume issuing trespass warnings. An assistant city attorney involved in the Catron litigation presented a draft amended ordinance that would allow for appeals of trespass warnings. He described the workings of the appellate process envisioned in the amendment, including its prescribed clear and convincing standard, and he indicated that the amendment was a means of complying with the ruling in Catron. The attorney advised the city council that he had met with various city personnel, including the chief of police, to inform them that they must temporarily refrain from enforcing section 20-30, but that this was going to be a short-term situation that would be quickly rectified. The attorney stated: "We need to get back out and enforce 20-30. The chief of police is very eager to have us do that." He advised: "[T]he taxpayers, the constituents, the people out there are most concerned about ... the panhandling, the sleeping, lying, reclining, the outdoor storage of tents, all that stuff."

One city council member stated:

Yeah, this is a really big issue. Because, you know, as far as the homeless goes, we could probably just go ahead and arrest them for open containers then if we had to. But as far as other things like our recreation centers, I don't want to have people smoking dope in front of our rec centers. And I've had it at just about every one I've ever been at and we've had to trespass people for it. And that's ... going to be a big problem if we can't do that. It's really, really important to find a way.

The attorney advised: "If you-all don't pass it, then we can't enforce 20-30. Like Counselor Kornell was saying, if somebody is smoking pot out in front of the rec center, you can charge them with that but you're not going to trespass." The mayor stated: "I think it should be passed." Another assistant city attorney told the city council that "what we're recommending is that you pass this on the first reading." At one point in the discussion a council member moved to approve the ordinance and had to be reminded that the council could not do so during a shade session. At the end of the meeting, the assistant city attorney who had offered the draft ordinance amendment told the council, "I just wanted to not only present the ordinance but just give you an update of where the litigation was and where it had come from and where it had gone."

The transcript of the shade meeting conclusively reflects that it was not "confined to settlement negotiations or strategy sessions related to litigation expenditures," as required by the Sunshine Law exemption set forth in section 286.011(8)(b). Rather, the attorneys and council members reviewed the terms of the draft amendment, discussed the urgency of and policy reasons for passing the amendment so that the City could resume enforcement of section 20-30, and expressed their consensus in favor of the amendment. In short, the shade meeting was used to crystallize a secret decision to a point just short of ceremonial acceptance, in violation of Florida's Sunshine Law. Wright was entitled to summary judgment holding such. We reverse and remand for further proceedings consistent with this decision. See Anderson, 161 So.3d at 554.

Affirmed in part, reversed in part, and remanded.

KELLY and CRENSHAW, JJ., Concur.


source: Caselaw Access Project

author: MORRIS, Judge.

license: Public Domain

text:
    Ifrain MONDEJA, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-1578
    District Court of Appeal of Florida, Second District.
    Opinion filed February 14, 2018.
    Ifrain Mondeja, pro se.
   MORRIS, Judge.

Ifrain Mondeja challenges the dismissal of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief in which he asserted one claim of ineffective assistance of trial counsel. The postconviction court dismissed the motion with prejudice, finding that the motion was untimely filed and that the certificate of service was defective for failing to include the State Attorney's Office. We reverse.

Generally, a motion filed under rule 3.850 must be filed within two years after a judgment and sentence become final. Fla. R. Crim. P. 3.850(b). Where a defendant does not file a direct appeal, the judgment and sentence become final thirty days after rendition. Caballero-Rayes v. State, 122 So.3d 437, 438 (Fla. 2d DCA 2013) ; Davis v. State, 687 So.2d 292, 293 (Fla. 2d DCA 1997). Mr. Mondeja's judgment and sentences were rendered on October 31, 2014. No appeal was filed, so his judgment and sentences became final thirty days later on November 30, 2014. Mr. Mondeja therefore had until November 30, 2016, to file a motion for postconviction relief. The stamp on Mr. Mondeja's motion reflects that it was placed "in the hands of an institutional official for mailing," see Fla. R. App. P. 9.420(a)(2)(A), on November 21, 2016. Thus, his motion for postconviction relief should have been deemed timely filed on November 21, 2016. See id.; Haag v. State, 591 So.2d 614, 617 (Fla. 1992).

As to the postconviction court's finding that the certificate of service was defective, this was correct. See Fla. R. App. P. 9.420(b)(1), (d)(1). The certificate of service attached to the motion reflected that Mr. Mondeja did not serve the State Attorney's Office. The postconviction court should have, however, allowed Mr. Mondeja to amend his motion to cure this technical deficiency. See Fla. R. Crim. P. 3.850(f)(2) ("If the motion is insufficient on its face, and the motion is timely filed under this rule, the court shall enter a nonfinal, nonappealable order allowing the defendant 60 days to amend the motion."); Spera v. State, 971 So.2d 754, 755 (Fla. 2007) ("[I]n dismissing a first postconviction motion based on a pleading deficiency, a court abuses its discretion in failing to allow the defendant at least one opportunity to correct the deficiency unless it cannot be corrected."); see also Bryant v. State, 901 So.2d 810, 818 (Fla. 2005) (observing that when a technically deficient motion is stricken with leave to amend to correct the deficiency, the amended motion relates back to the original filing for the purpose of determining the timeliness of the motion). Thus, the postconviction court abused its discretion by dismissing the motion without granting Mr. Mondeja leave to amend.

Accordingly, we reverse and remand with directions to strike Mr. Mondeja's motion and to grant him sixty days to file an amended motion. See Fla. R. Crim. P. 3.850(f)(2) ; Spera, 971 So.2d at 761.

Reversed and remanded with directions.

CASANUEVA and SLEET, JJ., Concur.


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    Sameh Salib SOLIMAN, Doc #S36770, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-2980
    District Court of Appeal of Florida, Second District.
    Opinion filed February 14, 2018
    Howard L. Dimmig, II, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

This appeal originally came to us pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Upon our de novo review of the record and after ordering additional briefing, we affirm the judgment and sentence, as well as the order of sex offender probation that was signed on June 29, 2016, but was not filed until September 8, 2016. However, because the trial court lacked jurisdiction to impose conditions of sex offender probation that it previously had affirmatively declined to impose, we vacate the trial court's September 8, 2016, order modifying that June 29, 2016, order without prejudice to a timely modification under Florida Rule of Criminal Procedure 3.800(c) following the issuance of our mandate in this appeal.

On June 29, 2016, on remand following this court's vacatur of Sameh Salib Soliman's conviction for using a computer to solicit a child to commit a sex act, see Soliman v. State, 185 So.3d 647, 648-49 (Fla. 2d DCA 2016), the trial court orally resentenced Soliman to concurrent terms of three years' imprisonment for traveling to meet a minor (count one), see § 847.0135(4)(a), Fla. Stat. (2013), and attempted lewd or lascivious battery (count three), see §§ 800.04(4)(a), 777.04, Fla. Stat. (2013). The court ordered that those terms be followed by concurrent terms of three years' sex offender probation on count one and two years' sex offender probation on count three. The court expressly and affirmatively declined, however, to impose most of the conditions of sex offender probation, although those conditions were statutorily mandatory for count three. See § 948.30, Fla. Stat. (2013).

On September 8, 2016-after the trial court had orally pronounced the sentence and after Soliman had filed the notice of appeal giving rise to this appeal but before the court had filed any written order of sex offender probation with the clerk of the circuit court-the court, pursuant to the parties' stipulation, ordered that Soliman's sentence be modified to include conditions of sex offender probation that it previously had affirmatively declined to include. Neither the parties' stipulation nor the court's order identified any authority for the court's modification of the conditions of Soliman's sex offender probation at that point. On that same date, the trial court filed both the order granting the parties' stipulation and its order of sex offender probation. This written order of sex offender probation, however, bore a signature date of June 29, 2016, and was, on its face, consistent with the court's oral pronouncement rather than with the court's modification order.

The trial court lacked jurisdiction to modify the conditions of Soliman's sex offender probation. In Poplar v. State, 842 So.2d 902, 903 (Fla. 2d DCA 2003), this court adopted the rationale of Kiriazes v. State, 798 So.2d 789, 792-94 (Fla. 5th DCA 2001), which held that the failure to impose mandatory standard conditions of sex offender probation results in an "incomplete" sentence correctable under rule 3.800(c). See also Schutte v. State, 824 So.2d 308, 308 (Fla. 1st DCA 2002) (following Kiriazes ). But see Beal v. State, 978 So.2d 825, 825-27 (Fla. 1st DCA 2008) (Padovano, J., concurring in result) (explaining why failing to impose statutorily mandated condition of probation should instead be characterized as resulting in "illegal" sentence correctable under rule 3.800(a) ). That rule permits a court to

reduce or modify to include any of the provisions of chapter 948, Florida Statutes, a legal sentence imposed by it, sua sponte, or upon motion filed, within 60 days after the imposition, or within 60 days after receipt by the court of a mandate issued by the appellate court on affirmance of the judgment and/or sentence on an original appeal ....

Fla. R. Crim. P. 3.800(c).

The "imposition" of the legal sentence that triggered the first sixty-day window, however, was the trial court's oral pronouncement of June 29, 2016. See Fla. R. Crim. P. 3.700(a) ("The term sentence means the pronouncement by the court of the penalty imposed on a defendant for the offense of which the defendant has been adjudged guilty."); Gonzalez v. State, 979 So.2d 1257, 1259 (Fla. 3d DCA 2008) ("The State maintains that 'imposition' of sentence means the oral pronouncement required by Florida Rule of Criminal Procedure 3.700, and that the oral pronouncement should start the time period for purposes of rule 3.800(c). We agree."). The sixtieth day following sentencing was Sunday, August 28, 2016, so the parties had until Monday, August 29, 2016, to timely move under rule 3.800(c). See also Fla. R. Crim. P. 3.040 ; Fla. R. Jud. Admin. 2.514(a)(1)(C). The parties' undated stipulation was not filed until September 8, 2016. Therefore, construed as a motion under rule 3.800(c), the stipulation was untimely and, therefore, inadequate to vest in the trial court jurisdiction to add to the conditions of sex offender probation those conditions that it had previously explicitly declined to impose. See Poplar, 842 So.2d at 903 (quoting Kiriazes, 798 So.2d at 794 ).

Accordingly, the trial court lacked jurisdiction to modify its oral pronouncement of the conditions imposed on Soliman's sex offender probation. We thus vacate the trial court's September 8, 2016, order modifying its June 29, 2016, order of sex offender probation without prejudice to a timely modification under rule 3.800(c) following the issuance of our mandate in this appeal. In all other respects, we affirm the judgment and sentence, as well as the June 29, 2016, order of sex offender probation, which accurately reflects the court's oral pronouncement.

Judgment and sentence affirmed; order vacated.

VILLANTI and CRENSHAW, JJ., Concur.

      Although imposing a few of the conditions, the court orally stated, "All the other conditions of sex offender probation will not apply to this particular sentence."

      Specifically, it included the language, "ALL OTHER SEX OFFENDER CONDITIONS DO NOT APPLY," despite that the order of modification directed that that language be struck. Appellate counsel for both parties represented that they could not explain why the written order of sex offender probation had not been filed with the clerk of the circuit court when it was originally signed.

      Although the State, in its supplemental briefing, argues that the modification was authorized under rule 3.800(b), we readily reject that rule as inapplicable; the imposition of additional conditions of probation plainly did not "benefit the defendant" and plainly went beyond correction of a mere "scrivener's error."


author: CATLIN, CATHERINE M., Associate Judge.

text:
    Jagdeo SUKRAJ, Appellant, v. Chear PHOEUNG and Jimmy Phoeung, Appellees.
    Case No. 2D17-159
    District Court of Appeal of Florida, Second District.
    Opinion filed February 14, 2018
    Robert J. Healy Jr., of Salter, Healy, Bassett & Rivera, St. Petersburg, for Appellant.
    Michael C. Clarke and Betsy E. Gallagher of Kubicki Draper, P.A., Tampa, for Appellees.
   CATLIN, CATHERINE M., Associate Judge.

Jagdeo Sukraj appeals the denial of his posttrial motion for additur or new trial. We reverse the portion of the order denying Sukraj's motion as to past noneconomic damages but affirm in all other respects.

Sukraj sued Chear and Jimmy Phoeung seeking past and future medical expenses and noneconomic damages after a car accident. The jury awarded him $53,431.16 in past medical expenses and $50,000 in future medical expenses but awarded him nothing for past or future noneconomic damages. In his motion and on appeal, Sukraj argued that the jury verdict was inadequate and against the manifest weight of the evidence because he offered unrebutted evidence at trial that he had suffered a permanent, painful injury to his shoulder, neck, and back.

This court reviews the denial of a motion for new trial or additur for an abuse of discretion. Campbell v. Griffith, 971 So.2d 232, 235 (Fla. 2d DCA 2008). And "where there is conflicting evidence, the weight to be given that evidence is within the province of the jury." Id. (citing K-Mart Corp. v. Collins, 707 So.2d 753, 755 (Fla. 2d DCA 1998) ). At trial, the evidence that Sukraj had suffered past pain and suffering in his shoulder as a result of the accident was undisputed. Therefore, the verdict awarding him nothing for past noneconomic damages for his shoulder is inadequate, and we reverse the portion of the order on appeal that denies Sukraj's motion seeking additur on that basis. See Ellender v. Bricker, 967 So.2d 1088, 1093 (Fla. 2d DCA 2007) ("[W]here 'the evidence is undisputed or substantially undisputed that a plaintiff has experienced and will experience pain and suffering as a result of an accident, a zero award for pain and suffering is inadequate as a matter of law.' " (quoting Dolphin Cruise Line, Inc. v. Stassinopoulos, 731 So.2d 708, 710 (Fla. 3d DCA 1999) ) ); see also § 768.043(2), Fla. Stat. (2016).

However, because the evidence that Sukraj had suffered past pain and suffering for the injuries to his neck and back and would experience future pain and suffering as a result of the accident was disputed at trial, we affirm the trial court's denial of Sukraj's motion on that basis. On remand, additur should be limited to Sukraj's past pain and suffering for his shoulder injury.

Affirmed in part; reversed in part; remanded with instructions.

KELLY and LUCAS, JJ., Concur.


author: PER CURIAM.

text:
    D.T., Appellant, v. J.M., Appellee.
    Case No. 2D17-155
    District Court of Appeal of Florida, Second District.
    Opinion filed February 14, 2018
    Michael M. Brownlee of The Brownlee Law Firm, P.A., Orlando, for Appellant.
    Sara M. McKinley of McKinley Law Firm, P.A., Bartow, for Appellee.
   PER CURIAM.

D.T., the father, challenges the final judgment of paternity. Although an Interim Order Pending Final Hearing dated July 19, 2016, included a child support guidelines worksheet as an attachment, no such worksheet was attached to the final judgment. And the child support calculations in the final judgment differ from those in the worksheet attached to the interim order without sufficient explanation in the record. See Dep't of Revenue ex rel. R.S.M. v. B.J.M., 127 So.3d 859, 861 (Fla. 2d DCA 2013). We therefore reverse and remand for recalculation of child support. The final judgment of paternity is affirmed in all other respects.

Affirmed in part, reversed in part, and remanded.

KELLY, BLACK, and SALARIO, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    Michele MILLAN, Appellant/Cross-Appellee, v. Estaban MILLAN, Appellee/Cross-Appellant.
    Case No. 2D16-2467
    District Court of Appeal of Florida, Second District.
    Opinion filed February 14, 2018
    Marsha Sutherland Pullen of Sutherland Pullen Law, PLLC, Naples, for Appellant/Cross-Appellee.
    Esteban Millan, pro se.
   NORTHCUTT, Judge.

In this appeal and cross-appeal from the final order in these postdissolution modification and contempt proceedings, we affirm in all respects save one. During the parties' long-term marriage, the former wife suffered a stroke from which she suffers a permanent impairment and ongoing health issues that significantly hinder her ability to maintain employment. In light of the former wife's severely diminished financial capability-which is exacerbated by the ordered reduction in her ongoing alimony income-the circuit court abused its discretion by giving retroactive effect to the alimony modification so as to charge her with an obligation resulting from past overpayments by the former husband. See Gurdian v. Gurdian, 198 So.3d 65, 68-69 (Fla. 2d DCA 2015). Insofar as the order modifies the former husband's alimony obligation retroactively, it is reversed. The order is otherwise affirmed.

Affirmed in part; reversed in part.

KELLY and BLACK, JJ., Concur.


author: Winsor, J.

text:
    Christopher JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-1755
    District Court of Appeal of Florida, First District.
    February 19, 2018
    Candice Kaye Brower and Melissa Joy Ford, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant Attorney General, Tallahassee, for Appellee.
   Winsor, J.

Christopher Jackson appeals his convictions and sentences, claiming violations of the Fourth, Sixth, and Eighth Amendments. More specifically, Jackson argues that the trial court should have granted his second motion to suppress, that only a jury could determine his status as a Prison Releasee Reoffender (PRR), and that his life sentence constitutes cruel and unusual punishment. We affirm.

I.

Jackson and two others broke into a home and held the home's four occupants at gunpoint. The three assailants forced the victims into a bathroom and took turns holding them while the others collected valuables. Jackson later claimed one of the victims had shorted him some marijuana in a recent sale. He admitted he broke into the house but insisted he only intended to take back that marijuana. He claimed the other assailants-not he-had stolen the other items.

Among the stolen items was an iPhone, so police quickly looked to the "Find My iPhone" application to track the assailants. Armed with real-time tracking and the description the victims provided, officers broadcast a be-on-the-look-out (BOLO) alert. An officer quickly identified a car in the same area as the stolen iPhone, traveling in the same direction as the stolen iPhone, and containing people matching the assailants' general descriptions.

After waiting for backup, the officer stopped the car, removed and handcuffed the occupants, and conducted a protective sweep of the car. The officer initially saw nothing in plain view but then opened the trunk and found marijuana and a revolver with an altered serial number. Her decision to open the trunk was consistent with her department's "plus one" rule, under which (she later testified) officers always search the trunk of a vehicle during a felony traffic stop "to make sure there's no other occupants either in the vehicle or in the trunk."

Meanwhile, other officers brought the victims to the traffic-stop location. The victims identified Jackson and another male passenger as participants in the robbery, and officers arrested those two. Officers then searched the car's passenger compartment incident to arrest, and they found several items taken during the robbery including a wallet, a handgun, and a victim's driver's license. They also found the stolen iPhone that led to the quick apprehension.

The State charged Jackson with burglary of a dwelling, aggravated assault, marijuana possession, possession of a firearm with an altered serial number, possession of a firearm by a convicted felon, and four counts of armed robbery.

Jackson, who represented himself at trial, adopted his co-defendant's two motions to suppress. The first motion sought to suppress the evidence found in the trunk before the show-up identification. The second motion sought to suppress the evidence found in the passenger compartment during the search incident to arrest.

The court granted the first motion saying it was "not convinced that [the plus-one] rule actually exists" and that it was "ludicrous" for officers to believe there could have been someone hiding in the trunk. The court also explicitly rejected the State's argument that the evidence should nevertheless be admitted under the inevitable-discovery exception, stating that "without the evidence from the trunk, there was no basis to detain the individuals and the show-up might never have occurred." After this ruling, the State moved to dismiss the charges for marijuana possession and possession of a firearm with an altered serial number.

But in a later hearing on the second motion to suppress, the court concluded police were justified in detaining Jackson for the show-up and that "the show-up lineup would have occurred irrespective of whether the property in the trunk had been found." The remaining counts then proceeded to trial.

The jury convicted Jackson of burglary of a dwelling, aggravated assault, and two counts of armed robbery. At sentencing, the court found that Jackson had committed these crimes within three years of being released from prison and that he therefore qualified for sentencing under the PRR Act. See § 775.082(9), Fla. Stat. (2012). Accordingly, the court sentenced Jackson to concurrent life sentences with a ten-year mandatory minimum in each of the armed-robbery counts, fifteen years' prison for burglary of a dwelling, and five years' prison with a three-year mandatory-minimum sentence for aggravated assault.

II.

Jackson's first argument on appeal is that the court should have suppressed the evidence found in the passenger compartment. He argues that without the evidence found in the trunk, there was no basis for searching the vehicle a second time or for detaining the occupants for the show-up identification. In other words, he argues, the search of the trunk (which the trial court found illegal) was the poisonous tree, and everything later found in the car was the fruit. See Oregon v. Elstad , 470 U.S. 298, 307-09, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). We conclude the trial court correctly rejected this argument.

Preliminarily, much of Jackson's argument focuses on the trial court's conclusion that officers illegally searched the trunk. Jackson insists that the trial court's ruling on that point obligated it to suppress evidence found after the trunk's search. He specifically argues that "the trial court's rulings were inconsistent and arbitrary." The trial court's order suppressing evidence from the trunk is not before us, and we are not obligated to presume the correctness of that order's legal conclusions-even assuming they were inconsistent with the court's later conclusions. The State was authorized to appeal the order suppressing evidence from the trunk, Fla. R. App. P. 9.140(c)(1)(B), but it chose not to-perhaps because it figured it could secure a conviction and life sentence with the remaining evidence alone. The State is not obligated to appeal adverse suppression rulings just to preserve convictions secured despite those rulings. We therefore must decide whether the suppression ruling that is before us was correct in its own right.

An officer may conduct an investigative stop when he or she has reasonable suspicion that the occupants have committed or are committing a crime. Hunter v. State , 660 So.2d 244, 249 (Fla. 1995). An officer need not personally observe the events giving rise to reasonable suspicion, so long as facts are communicated to him by another officer or a reliable third party. State v. Bowers , 87 So.3d 704, 707-08 (Fla. 2012). Courts evaluating whether an investigatory stop based on a BOLO was justified consider "(1) the length of time and distance from the offense; (2) route of flight; (3) specificity of the description of the vehicle and its occupants; and (4) the source of the BOLO information." Hunter , 660 So.2d at 249.

These factors weigh overwhelmingly in the State's favor. The robbery occurred at 5:45 a.m., and the officer initiated the stop shortly after 6:00 a.m. Officers knew the perpetrators' exact route because they were tracking the stolen iPhone, which was traveling in the same vicinity and in the same direction as Jackson's vehicle. Finally, the vehicle contained the same number of occupants as the BOLO description, and the officer saw that one of the occupants wore a camouflage hat, consistent with the BOLO. Cf . id. (holding that officer had reasonable suspicion to conduct traffic stop and detain occupants for a show-up identification based on BOLO where roughly an hour had passed since the crime was committed and BOLO description included number and description of occupants).

Given these facts, officers had reasonable suspicion to stop the vehicle and detain the occupants for the show-up identification. Once the victims identified Jackson, there was probable cause to arrest him (assuming there was no probable cause beforehand). And because officers reasonably believed that the vehicle contained evidence of the robbery, the subsequent search of the passenger compartment was justified as a search incident to arrest. See Arizona v. Gant , 556 U.S. 332, 343-44, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009).

The search of the vehicle's passenger compartment was not a violation of the Fourth Amendment.

III.

Next, Jackson argues that because his eligibility for sentencing under the PRR Act was not found by the jury beyond a reasonable doubt, his heightened sentence violated his Sixth-Amendment rights in light of Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).

In Apprendi v. New Jersey , 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Supreme Court held that any fact that increases a defendant's statutory maximum sentence, other than the fact of a prior conviction, must be found by a jury or admitted by the defendant. Then, in Alleyne , the Supreme Court extended this rule to apply to any fact that increases any mandatory-minimum sentence. Alleyne , 133 S.Ct. at 2155. After Apprendi but before Alleyne , the Florida Supreme Court upheld the constitutionality of the PRR Act, rejecting arguments that the Act violated Apprendi . See Robinson v. State , 793 So.2d 891, 893 (Fla. 2001).

Jackson contends that the United States Supreme Court's Alleyne decision effectively overruled the Florida Supreme Court's Robinson decision. He contends that in light of Alleyne , the PRR Act violates the Sixth Amendment. But this court explicitly rejected that argument in Williams v. State , 143 So.3d 423, 424 (Fla. 1st DCA 2014). Jackson argues that Williams was wrongly decided, but this panel is bound to follow it.

IV.

Finally, we reject Jackson's argument that his life sentence violates the Eighth Amendment. The Florida Supreme Court has said that "to violate the Cruel and Unusual Punishments Clause, a prison sentence must, at least, be grossly disproportionate to the crime." Adaway v. State , 902 So.2d 746, 749 (Fla. 2005). A life sentence for armed robbery falls well short of that standard. Cf ., e.g. , Harmelin v. Michigan , 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (no Eighth Amendment violation with life sentence for drug possession); Rummel v. Estelle , 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) (no Eighth Amendment violation with life sentence for obtaining money by false pretenses based on recidivist statute). We likewise reject Jackson's argument that his sentence violates the Florida Constitution's prohibition against cruel and unusual punishments. See Art. I, § 17, Fla. Const. (noting that Florida provision "shall be construed in conformity with decisions of the United States Supreme Court which interpret the prohibition against cruel and unusual punishment").

To the extent Jackson argues his sentence is too harsh because it could have been lighter if he committed his crimes twelve days later than he did, his timing does not make his punishment any more grossly disproportionate. It is up to the Legislature to determine where the appropriate cutoff for a PRR sentence lies, and the Florida Legislature chose three years. See Rummel , 445 U.S. at 285, 100 S.Ct. 1133 ("Like the line dividing felony theft from petty larceny, the point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction."). Regardless, the Florida Supreme Court has held that mandatory-minimum sentences under the PRR Act do not violate the Eighth Amendment. State v. Cotton , 769 So.2d 345, 356 (Fla. 2000) ("[T]he [PRR] Act's mandatory sentencing scheme does not constitute 'cruel or unusual' punishment.").

AFFIRMED .

Bilbrey and M.K. Thomas, JJ., concur.

      The PRR Act allows the State to seek enhanced sentences for those who commit certain felonies within three years of release from prison. See § 775.082(9), Fla. Stat. (2012). Jackson committed his crimes just eleven days short of the three-year mark following his release.


author: Per Curiam.

text:
    Segwayne GOLDSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5299
    District Court of Appeal of Florida, First District.
    February 20, 2018
    Jonathan Dingus, Panama City, and Segwayne Goldson, pro se, for Appellant.
    Pamela Jo Bondi, Attorney General, and Steven E. Woods, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Appellant Segwayne Goldson appeals his judgment of conviction and sentence for sexual battery with physical force likely to cause serious injury and sexual battery. His appointed appellate counsel filed an Anders brief. Thereafter, counsel was ordered to file a supplemental brief addressing three issues identified by this court as potentially meritorious. Consideration of the arguments raised on appeal as well as our independent review of the record and applicable law has revealed no reversible error in the circuit court's proceedings. Accordingly, the judgment of conviction and sentences are AFFIRMED .

Bilbrey, Winsor, and M.K. Thomas, JJ., concur.

      See Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and In re Order of First Dist. Court of Appeal Regarding Brief Filed in Forrester v. State , 556 So.2d 1114 (Fla. 1990).


text:
    Euriell LAIDLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2372
    District Court of Appeal of Florida, First District.
    February 20, 2018
    Euriell Laidler, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

The appellant challenges the denial of his postconviction motion brought pursuant to Florida Rule of Criminal Procedure 3.850, which argued that his attorney provided ineffective assistance by failing to file a motion to suppress the victims' out-of-court and in-court identifications. The trial court summarily denied the motion, concluding that the appellant had not shown a deficient performance by counsel or any resulting prejudice. However, the court did not attach to the order records that conclusively refute the appellant's claim. See Fla. R. Crim. P. 3.850(f)(4) ("A copy of the portion of the files and records in the case that conclusively shows that the defendant is not entitled to relief as to one or more claims shall be attached to the order summarily denying these claims.").

In response to this Court's order, the state concedes that the trial court's order is insufficient to support the summary denial of the appellant's motion due to the court's failure to attach documents. We, therefore, reverse and remand for the attachment of records that conclusively refute the appellant's claim or for an evidentiary hearing. See Ortiz v. State , 968 So.2d 681, 684 (Fla. 1st DCA 2007).

REVERSED and REMANDED for further proceedings consistent with this opinion.

Roberts, Rowe, and Winokur, JJ., concur.


author: LUCK, J.

text:
    LIORK, LLC and Keren Ben Shimon, Appellants, v. BH 150 SECOND AVENUE, LLC, Appellee.
    No. 3D16-1881
    District Court of Appeal of Florida, Third District.
    Opinion filed February 21, 2018. Rehearing Denied April 13, 2018
    Militzok & Levy, P.A. (Hollywood); Richard J. Lee (Hollywood), for appellants.
    Jonathan A. Heller ; Jay M. Levy, for appellee.
    Before SUAREZ, SCALES and LUCK, JJ.
   LUCK, J.

This case is about the enforceability of a subscription agreement between an investor and the company she invested in. The investor sought a declaratory judgment that the subscription agreement she signed was unenforceable because there was a lack of mutuality, and the liquidated damages clause calling for her to surrender her initial payments was an improper penalty provision. The trial court granted the investment company's motion for summary judgment, declaring the agreement was enforceable. We agree, and affirm.

Factual Background and Procedural History

In 2013, BH 150 Second Avenue, LLC, made an offering seeking accredited investors to join in a business venture. The objective of the venture was to purchase a commercial building in downtown Miami and convert it into an office and retail condominium of approximately 100 units. The offering was intended as an alternative to obtaining institutional or bank financing for the project. The offering included a proposed operating agreement for the new business and a subscription agreement to be signed by each investor. Prior to making the offering, BH 150 contracted with the owners of the building it sought to purchase. The purchase price was $17.5 million and BH 150 paid a $1.1 million non-refundable deposit on the contract. The subscription agreement to be signed by the investors recited the existence of the contract and anticipated the transaction would close on or about November 1, 2013, although it allowed for an extension of one hundred twenty days if the renovations being performed were not completed in a timely fashion.

On August 9, 2013, Keren Ben Shimon executed a subscription agreement where she agreed to pay $565,000 at execution, $1,130,000 thirty days after execution, and the remaining $3,955,000 thirty days prior to the noticed closing date on the purchase of the building. Upon completion of the project, Ben Shimon would be deeded title to four of the building's condominium units. Ben Shimon made three payments under the agreement totaling $3,295,000.

On December 2, 2013, BH 150 notified Ben Shimon and the other investors that the closing on the purchase of the building was anticipated to occur on January 15, 2014. Ben Shimon was told that in accordance with the terms of her agreement the final payment of $2,469,154.04 needed to be made on or before December 16, 2013. Ben Shimon was unable to make the payment and asked for additional time. Ben Shimon was advised that another investor was willing to advance Ben Shimon the amount required to avoid default, but Ben Shimon did not accept this loan. BH 150 sent a default letter to Ben Shimon on December 19, 2013. Eventually, the developer of the office building chipped in the money needed to make up for the shortfall created by Ben Shimon's default, and BH 150 closed on the purchase of the building on February 28, 2014.

In the wake of the default, Ben Shimon brought this declaratory relief action seeking to: (1) declare the subscription agreement void for lack of mutuality; (2) declare the liquidation damages clause unenforceable as a penalty; and (3) obtain a return of her initial payments BH 150 retained as a result of the default. The parties filed cross-motions for summary judgment, and after a hearing, the trial court denied Ben Shimon's motions and granted BH 150's motions. Ben Shimon appeals from the final summary judgment in favor of BH 150.

Standard of Review

Where, as here, based on undisputed facts, the trial court grants one party's cross-motion for summary judgment on a declaratory judgment action, our review is de novo. Lee Cty. Elec. Coop., Inc. v. City of Cape Coral, 159 So.3d 126, 127 (Fla. 2d DCA 2014) ("In the declaratory judgment proceeding, the City and LCEC filed cross-motions for summary judgment. The circuit court determined that the facts were undisputed, and it ruled in the City's favor based on the franchise agreement between the parties and on section 337.403(1), Florida Statutes (2005). Our review of the summary judgment is de novo.").

Discussion

Ben Shimon contends the trial court erred in granting summary judgment for BH 150 because (1) the subscription agreement lacked mutuality of obligations; and (2) it had an unenforceable penalty clause. We will address each issue separately.

1. Lack of mutuality.

Ben Shimon claims the subscription agreement is void for lack of mutuality because BH 150 retained two rights which in essence allowed it to perform or not at its sole discretion. The two retained rights are contained in the following language from the subscription agreement:

Subscriber understands and agrees that this Subscription may be rejected by the Company at any time in its sole discretion.... If the Subscription is rejected, all funds received from the Subscriber will be returned, without interest, by the Company, and, thereafter, this Agreement shall be of no further force or effect. Additionally, if the Company accepts the Subscription, but the Company does not purchase the Property for any reason or no reason at all, all funds received from the Subscriber will be returned, without interest, to Subscriber and this Agreement will be of no further force or effect....

Ben Shimon reads this language as authorizing BH 150 to terminate her subscription at any time and, more importantly, to back out from the purchase of the building for any reason, thus rendering its promises under the agreement completely illusory. Ben Shimon correctly argues that a bilateral contract where one party retains the right to fulfill or decline to fulfill its contractual obligation is unenforceable because it is based on an illusory promise. See, e.g., Flagship Resort Dev. Corp. v. Interval Int'l, Inc., 28 So.3d 915, 921 (Fla. 3d DCA 2010) ("[I]n a bilateral contract a promise that permits the promisor to fulfill or decline to fulfill its contractual obligations at its option is not binding on the promisor and renders the promise incapable of enforcement by the promisee."). This rule, however, applies to bilateral contracts where one party promises to perform a specific action directly in exchange for the other party performing another specific action, like a sale and purchase agreement. That is not the type of agreement at issue in this case.

Ben Shimon entered into an agreement subscribing to a business venture, not a direct purchase and sale agreement to acquire title to certain condominium units. Ben Shimon, a sophisticated investor, was to receive an interest in the venture, after being apprised of the risk factors involved in the business. In fact, in connection with her subscription, Ben Shimon was provided with a document listing twenty-three separate risks associated with the venture, including:

The Subscriber has been cautioned that an investment in the Company is speculative and involves significant risks, and that it is probably not possible to foresee and describe all of the business, economic and financial risks factors which may affect the Company. The Subscriber acknowledges that he has been advised to seek independent professional advice in order to carefully analyze the risks and merits of an investment in the Company.

Subscriptions capitalized the business venture which entailed acquisition of an office building and remodeling and converting it into a condominium. In lieu of return of their cash investment and any profit earned by the venture, the investors were to receive title to condominium units.

Like any investor in an uncertain business enterprise, the subscribers assumed the risk that for whatever reason, including the inability to acquire title to the property, the enterprise may fail and the investment may be lost. This fact distinguishes the cases cited by Ben Shimon in support of her lack of mutuality argument. For example, Ben Shimon cites to Office Pavilion South Florida, Inc. v. ASAL Products, Inc., 849 So.2d 367 (Fla. 4th DCA 2003), a case involving a dispute between an office goods supplier and a manufacturer of office chairs-a direct seller to buyer transaction, and Allington Towers North, Inc. v. Rubin, 400 So.2d 86 (Fla. 4th DCA 1981), involving a garden variety purchase and sale contract to convey title to real estate. Unlike these cases, BH 150 promised and delivered to all subscribers, including Ben Shimon, the right to participate in the business venture. Ultimately, the business was successful and those members who fully performed their side of the bargain were rewarded with title to condominium units as a return on their investment. Ben Shimon was not so rewarded only because she did not perform as required under the agreement.

A careful reading of the subscription agreement as a whole also negates Ben Shimon's contention that BH 150 reserved to itself the ability to cancel her subscription at any time at its sole discretion. The language of the agreement Ben Shimon relies on is found in paragraph 4, entitled "Acceptance of Subscription." The first sentence of that paragraph uses the word "reject," rather than "terminate." The sentence is immediately followed by an explanation of what should occur either upon acceptance or rejection of the subscription. Acceptance will be evidenced by a return of the fully signed subscription agreement to the investor, while a refund of any funds received from the investor will follow a rejection. The provision thus refers to BH 150's right to accept or reject Ben Shimon's request to join the business venture. It does not, as Ben Shimon asserts, give BH 150 the unfettered right to terminate Ben Shimon's subscription after her membership in the venture was accepted. The undisputed record shows that BH 150 signed and provided the signed subscription agreement to Ben Shimon, thereby obligating itself to perform under the contract. From this point forward, BH 150 had the right to terminate Ben Shimon's subscription only on grounds expressly stated in the agreement, including failure to pay the full amount of the subscription once the investor received notice of the closing date.

When considering the agreement as a whole, the parties agreed to mutual promises-Ben Shimon agreed to pay a certain amount of money, and in exchange, was to receive an interest in the business venture. Thus, the trial court correctly refused to void the subscription agreement on the ground that it lacked consideration.

2. Penalty clause.

Ben Shimon contends the liquidated damages provision of the subscription agreement should be stricken because it constitutes an impermissible penalty clause. The Florida Supreme Court has adopted this "test as to when a liquidated damages provision will be upheld and not stricken as a penalty clause. First, the damages consequent upon a breach must not be readily ascertainable. Second, the sum stipulated to be forfeited must not be so grossly disproportionate to any damages that might reasonably be expected to follow from a breach as to show that the parties could have intended only to induce full performance, rather than to liquidate their damages." Lefemine v. Baron, 573 So.2d 326, 328 (Fla. 1991) Again, when properly considered as an agreement to subscribe to a business venture to acquire and convert a building into condominiums, rather than the mere purchase of condominium units, the liquidated damages meets both prongs of this test.

As to the not-readily-ascertainable prong, the Florida Supreme Court has explained that because of fluctuations in the real estate market, damages for the loss of a real estate opportunity cannot be readily ascertained at the time the contract is signed such that it would defeat a liquidated damages clause. See Hutchison v. Tompkins, 259 So.2d 129, 132 (Fla. 1972) ("The land sale market in Florida fluctuates from year to year and season to season, and it is generally impossible to say at the time a contract for sale is drawn what vendor's loss (if any) will be should the contract be breached by purchaser's failure to close. Accordingly ... we conclude that the damages which the parties could expect as a result of a breach were not readily ascertainable as of the time the contract was drawn up ...."); Bradley v. Sanchez, 943 So.2d 218, 222 (Fla. 3d DCA 2006) ("The Florida Supreme Court has ruled that liquidated damages are appropriate damages in a contract for sale of real estate in Florida, and they are not to be considered a penalty. Such damages are not readily ascertainable as of the time the contract is drawn." (quotation omitted) ). So it was for the subscription agreement in this case, which contemplated an investment in an office building that BH 150 was buying.

As to the grossly-disproportionate prong, Ben Shimon's failure to pay her share of money due for closing jeopardized the entire investment opportunity, not just the purchase of the four units earmarked for Ben Shimon. Her $3,295,000 damages amount is measured against the potential loss of the investment-the office building-which was in excess of $22 million. The approximate 14.97 percent of liquidated damages to the total purchase price of the office building was not grossly disproportionate. See, e.g., Johnson v. Wortzel, 517 So.2d 42 (Fla. 3d DCA 1987) (18.2%); Dade Nat'l Dev. Corp. v. Southeast Inv. of Palm Beach Cty., 471 So.2d 113 (Fla. 4th DCA 1985) (18%); Hooper v. Breneman, 417 So.2d 315 (Fla. 5th DCA 1982) (13.3%).

Conclusion

In conclusion, the subscription agreement was neither unenforceable because of lack of mutuality of obligations, nor for an impermissible penalty clause. Accordingly, we agree with the trial court's interpretation of the parties' agreement and affirm the judgment entered below.

Affirmed.

      An accredited investor was defined as an individual with a net worth exceeding $1 million, excluding the individual's primary residence.

      After she signed the subscription agreement, Ben Shimon assigned her interest in the subscription to her company, Liork, LLC, although she remained responsible for performing under the agreement.


text:
    Hugh HICKS, Appellant, v. AMERICAN INTEGRITY INSURANCE COMPANY OF FLORIDA, Appellee.
    Case No. 5D17-1282
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 23, 2018 Rehearing Denied May 18, 2018
    Mark A. Nation and Paul W. Pritchard, of The Nation Law Firm, Longwood, for Appellant.
    Andrew P. Rock and Julia G. Young, of The Rock Law Group, P.A., Maitland, for Appellee.
   PER CURIAM.

Hugh Hicks appeals the summary final judgment granted in favor of American Integrity Insurance Company of Florida ("AIIC") in his suit for breach of contract. Hicks contends that the trial court misapplied his insurance policy's provision excluding damages caused by "[c]onstant or repeated seepage or leakage of water ... over a period of 14 or more days." For the following reasons, we agree and reverse.

Hicks purchased an "all risks" policy from AIIC, which covered his home from May 31, 2012, until May 31, 2013. In September 2012, while Hicks was out of town, the water supply line to his refrigerator began leaking, slowly at first, then steadily increasing, until, by the time Hicks returned on October 25, the supply line was discharging almost one thousand gallons each day. Hicks filed a claim with AIIC, but after AIIC's expert determined that the pipe had been leaking for five weeks or more, AIIC denied the claim, quoting the following provision of the policy: "We do not insure ... for loss ... [c]aused by ... [c]onstant or repeated seepage or leakage of water ... over a period of 14 or more days."

Hicks sued for breach of contract, and AIIC pleaded in an affirmative defense that this provision excluded Hicks's loss. AIIC then filed a motion for summary judgment, arguing that because the leak occurred over a period of more than fourteen days, the provision unambiguously excluded coverage for all of Hicks's losses. Hicks filed his own motion for summary judgment, on three issues: that Hicks sustained a physical loss during the policy period, that all losses occurring within the first thirteen days were covered, and that Hicks was entitled to $40,926.77 for losses occurring within the first thirteen days of the leak. Hicks attached to his motion an extensive report from a forensic general contractor, which attempted to calculate the amount of damage to Hicks's home within the first thirteen days of the leak. At a hearing on the motions, the trial court told Hicks, "Basically, you're asking [this court] to say whether the policy covered the loss in the first 13 days .... It might, but I'm not so sure that the time frame of these particular facts would allow for that determination." The trial court then granted summary judgment in AIIC's favor.

On appeal, Hicks contends that the exclusion applies only to losses "caused by water on day 14 and onward." Hicks relies on Wheeler v. Allstate Insurance, 687 Fed.Appx. 757, 759 (10th Cir. 2017), in which Allstate denied Wheeler's claim under a substantially similar exclusion clause. A leak in Wheeler's seasonal cabin went undiscovered for several months, by which point the basement had been flooded with five inches of water. Id. At trial, Wheeler argued that he was entitled to coverage for the first week of damage caused by the leak. Id. at 762. The court in Wheeler reversed the trial court's grant of summary judgment in Allstate's favor, finding that the "claimed damage was not caused by leakage over a period of 14 days or longer; it was caused by leakage over a period of less than 14 days." Id. at 767. Hicks also relies on Coutts v. Florida Peninsula Insurance, 23 Fla. L. Weekly Supp. 1012b, 2016 WL 2610065 (Fla. 11th Cir. Ct. Mar. 4, 2016), in which the plaintiff sued her insurance company after it denied her claim based on a substantially similar exclusion clause. The circuit court held, "[I]f the 'loss' was realized between days 1 and 13 it is not excluded, even though the 'condition' may have remained on the property for 14 days or longer. Thus, the stipulation that the home was exposed to water for 14 or more days proved just that-and nothing more." Id.

In light of the general principle that insurance policy provisions susceptible to more than one interpretation should be construed liberally in favor of the insured and strictly against an insurer, and that exclusionary clauses should be read even more narrowly, we hold that an insurance policy excluding losses caused by constant or repeated leakage or seepage over a period of fourteen days or more does not unambiguously exclude losses caused by leakage or seepage over a period of thirteen days or less. See Container Corp. of Am. v. Md. Cas. Co., 707 So.2d 733, 736 (Fla. 1998) ; State Farm Mut. Auto. Ins. v. Pridgen, 498 So.2d 1245, 1248 (Fla. 1986) ; FCCI Ins. v. Horne, 890 So.2d 1141, 1143 (Fla. 5th DCA 2004) ; Hrynkiw v. Allstate Floridian Ins., 844 So.2d 739, 741 (Fla. 5th DCA 2003). It is not unambiguously clear that a provision excluding losses caused by constant leakage of water over a period of fourteen or more days likewise excludes losses caused by constant leakage of water over a period of less than fourteen days. And ambiguous insurance provisions-those susceptible to more than one meaning, one providing coverage and the other denying it-must be construed against the insurer and in favor of coverage. Wash. Nat'l. Ins. v. Ruderman, 117 So.3d 943, 950 (Fla. 2013) ("[W]here, as here, one reasonable interpretation of the policy provisions would provide coverage, that is the construction which must be adopted."); Pridgen, 498 So.2d at 1248.

Moreover, the trial court's express reasoning for granting summary judgment in AIIC's favor-that the policy "might" cover "the loss in the first 13 days," but that the trial court was nevertheless "not so sure that the time frame of these particular facts would allow for that determination"-was flawed. In an all-risks policy, once the insured establishes a loss within the terms of a policy, the burden shifts to the insurer to prove that a particular loss arose from an excluded cause. Mejia v. Citizens Prop. Ins., 161 So.3d 576, 578 (Fla. 2d DCA 2014). Whether such a determination is possible is a genuine issue of material fact precluding summary judgment.

We therefore reverse the summary judgment entered in favor of AIIC and remand this case to the trial court to enter partial summary judgment in Hicks's favor on the sole issue of coverage within the first thirteen days of the leak, the extent of the losses to be determined at trial. As for losses occurring after the first thirteen days, the burden will be on AIIC to prove that a particular loss was sustained after the thirteenth day and is therefore not covered under the language of the exclusion provision.

REVERSED and REMANDED.

ON MOTION FOR REHEARING AND CERTIFICATION

American Integrity Insurance Company of Florida ("AIIC") has filed a motion for rehearing and certification. AIIC has also filed a motion for rehearing en banc, which will be the subject of a separate order by this court. In his Response to these motions, Hugh Hicks contends, among other things, that AIIC improperly reargues the issue decided by this court. Hicks further contends that AIIC's arguments regarding the per curiam affirmed decision without written opinion in Zimmerman v. American Integrity Insurance, 212 So. 3d 376 (Fla. 5th DCA 2015) (table decision), are improper.

Hicks is correct that the motion for rehearing reargues the issue already decided by this court. It has been a fundamental rule for quite some time that such argument is prohibited. As we explained in Boardwalk at Daytona Development, LLC v. Paspalakis:

Appellees' "motion does what [Florida Rule of Appellate Procedure] 9.330(a) proscribes; it re-argues the merits of the case." Lawyers Title Ins. Corp. v. Reitzes, 631 So. 2d 1100, 1100 (Fla. 4th DCA 1993) (citations omitted). "It appears that counsel are utilizing the motion for rehearing and/or clarification as a last resort to persuade this court to change its mind or to express their displeasure with this court's conclusion." Id. at 1101. "This is not the purpose of [r]ule 9.330. It should be noted that the filing of [r]ule 9.330 motions should be done under very limited circumstances, it is the exception to the norm." Id. (footnote omitted). "Motions for rehearing are strictly limited to calling an appellate court's attention-without argument-to something the court has overlooked or misapprehended. 'The motion for rehearing is not a vehicle for counsel or the party to continue its attempts at advocacy.' " Cleveland v. State, 887 So. 2d 362, 364 (Fla. 5th DCA 2004) (quoting Goter v. Brown, 682 So. 2d 155, 158 (Fla. 4th DCA 1996) ).

212 So. 3d 1063, 1063 (Fla. 5th DCA 2017).

Turning to the Zimmerman decision, AIIC makes it a feature of its motion for rehearing en banc. AIIC filed an appendix containing the briefs filed in Zimmerman in an attempt to support its argument that this court affirmed the same coverage issue and "seemingly reached the opposite conclusion" in a case with a similar fact pattern. Those briefs clearly reveal that Hicks is correct-not only does Zimmerman have no precedential value for the purpose of granting a motion for rehearing en banc, the arguments made by AIIC regarding that decision are improper.

In the opinion rendered in the current appeal, the issue we resolved is whether the policy exclusion applies to exclude coverage for loss that occurs during the first thirteen days of water seepage or leakage. For the reasons explained in the opinion, we held that the exclusion does not apply to that time period. The briefs in the Zimmerman appeal reveal that, while the insured attempted to raise this issue in that case, AIIC argued that the issue was waived and not reviewable. AIIC does not mention this fact in its motion. Yet AIIC improperly cites to Zimmerman in its motion to argue that this court seemingly reached the opposite decision regarding the same coverage issue.

AIIC's motion exemplifies the wisdom of the rule that such per curiam affirmed decisions without a written opinion have no precedential value and should only be relied upon to establish res judicata. Dep't of Legal Affairs v. Dist. Ct. of Appeal, 5th Dist., 434 So. 2d 310, 313 (Fla. 1983) ("We reiterate that such a decision is not a precedent for a principle of law and should not be relied upon for anything other than res judicata."); Munnerlyn v. Wingster, 825 So. 2d 481, 483 (Fla. 5th DCA 2002) (holding that a party's reliance on a per curiam affirmance with a dissenting opinion even from its own court was "misplaced," since a dissenting opinion has no precedential value); Robinson v. State,Dep't of HRS ex rel. Robinson, 473 So. 2d 228, 229 n.1 (Fla. 5th DCA 1985) ("We do not need to distinguish Thompson v. Lancaster, 458 So. 2d 442 (Fla. 5th DCA 1984), a per curiam affirmance without opinion. It is not precedential authority, because the reasons for the affirmance cannot be determined."); St. Fort ex rel. St. Fort v. Post, Buckley, Schuh& Jernigan, 902 So. 2d 244, 248 (Fla. 4th DCA 2005) ; State v. Swartz, 734 So. 2d 448, 448 (Fla. 4th DCA 1999) ; Terry v. State, 467 So. 2d 761, 765 (Fla. 4th DCA 1985) ("We caution the parties and trial courts not to rely on decisions of this court or other appellate courts rendered without opinion as precedential authority in other cases.").

The Florida Supreme Court in Department of Legal Affairs addressed the propriety of citing a per curiam decision without an opinion in appellate briefs and oral arguments. 434 So. 2d at 312. The court held that it would not be proper to cite such a decision from another appellate court, explaining it "has no relevance for any purpose and is properly excluded from a brief or oral argument." Id. It also addressed whether it would be appropriate for a party to call the court's attention to one of its own per curiam affirmed decisions to "suggest to the court how it previously viewed the proposition." Id. at 313. The court indicated that while such a citation may not be improper, it would be up to the court to decide whether to consider the prior decision. Id. We hold that it is improper for a party to cite to such a per curiam decision without opinion when that same party argued in the prior appeal that the pertinent issue was waived and not reviewable.

AIIC was a party in the Zimmerman appeal, and it cited to that decision in the motion it filed in the instant appeal to show that this court decided the same issue differently in each case, knowing full well that it argued in Zimmerman that the issue was waived. In light of its waiver argument, we fail to see how AIIC can find it "troubling when a court affirms a coverage issue without explanation and then reaches essentially the opposite decision a short time later," when AIIC believed that the issue was not reviewable in Zimmerman.

The motion for rehearing and certification is denied.

DENIED.

SAWAYA, EVANDER and LAMBERT, JJ., concur.

      An all-risks insurance policy covers "all losses not resulting from misconduct or fraud unless the policy contains a specific provision expressly excluding the loss from coverage." Hudson v. Prudential Prop. & Cas. Ins., 450 So.2d 565, 568 (Fla. 2d DCA 1984).

      But even that issue differs from the issue in the instant case because, in Zimmerman, the only argument regarding whether coverage applied to the first thirteen days was based on the lack of a "lead-in provision" related to the "sequence of the loss."


text:
    William Charles RICHARDSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-2436
    District Court of Appeal of Florida, Third District.
    Opinion filed February 21, 2018
    William Charles Richardson, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. The Appellant, William Charles Richardson, is directed to show cause, within thirty days of the date of this opinion, why he should not be prohibited from filing further pro se appeals, petitions, motions, or other pleadings in this Court relating to lower tribunal case F75-11762. See State v. Spencer, 751 So.2d 47 (Fla. 1999), and the trial court's orders of October 13, 2017, June 24, 2016, September 24, 2015, and April 12, 2013, as well as this Court's opinions and orders in Case Nos. 3D17-2051, 3D16-2162, 3D16-1825, 3D15-1936, 3D15-530, and 3D13-2045.


text:
    Leo C. HOLLINGSWORTH, Jr., Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D17-2162
    District Court of Appeal of Florida, First District.
    March 6, 2018
    Leo C. Hollingsworth, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Brett Coleman, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Wetherell, Makar, and Kelsey, JJ., concur.


text:
    Corey A. MCDOWELL BEY, Appellant, v. Kevin JORDAN, Warden, Union C.I., Appellee.
    No. 1D17-3016
    District Court of Appeal of Florida, First District.
    February 28, 2018
    Corey A. McDowell Bey, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee; Kenneth S. Steely, General Counsel, Florida Department of Corrections, Tallahassee, for Appellee.
   Per Curiam.

We dismiss this untimely appeal for lack of jurisdiction. See Agere Sys. Inc. v. All Am. Crating, Inc. , 931 So.2d 244, 244 (Fla. 5th DCA 2006).

Roberts, Kelsey, and M.K. Thomas, JJ., concur.


text:
    Martha C. SPOONER, Petitioner, v. Walt MCNEIL, Leon County Sheriff's Office, Respondent.
    No. 1D18-0685
    District Court of Appeal of Florida, First District.
    February 27, 2018
    Candice Brower, Criminal Conflict & Civil Regional Counsel, and Angela M. Senich, Assistant Regional Counsel, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Caroline Johnson Levine, Assistant Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of habeas corpus is denied on the merits.

Makar, Osterhaus, and Winsor, JJ., concur.


author: SALTER, J.

text:
    FLORIDA DEPARTMENT OF TRANSPORTATION, et al., Appellants, v. Marc SARNOFF, etc., et al., Appellees.
    No. 3D17-2374
    District Court of Appeal of Florida, Third District.
    Opinion filed March 7, 2018
    Marc Peoples, Assistant General Counsel (Tallahassee), for appellants.
    Solowsky & Allen, P.L., and Mason A. Pertnoy and Jay H. Solowsky, for appellee Marc Sarnoff.
    Before LAGOA, SALTER and LINDSEY, JJ.
   SALTER, J.

The Florida Department of Transportation ("FDOT") and Michael J. Dew (in his official capacity as Secretary of FDOT) appeal an order denying FDOT's motion to dismiss a circuit court lawsuit for improper venue. The issue before us is whether Florida's common law "home venue privilege," enjoyed by State agencies including FDOT, is subject to a statutory exception applicable to certain FDOT contracts. Based on the record before us and the analysis which follows, we conclude that the statutory exception does not apply. We reverse the order denying the motion to transfer venue to the Circuit Court for Leon County, and we remand with direction to grant FDOT's motion.

The 2013 Lawsuit and Dismissal

In 2013, Marc Sarnoff (then Chairman of the City of Miami Commission) and Tomas Regalado (then Mayor of the City) filed a complaint and an amended complaint against the FDOT requesting several types of equitable relief regarding "FDOT's commitment to build a 'signature' bridge as part of a planned renovation of the I-395 corridor (the 'I-395 Project')." The plaintiffs and complaint sought class representation as to those City residents affected by the I-395 Project. The gravamen of the amended complaint was an alleged "bait and switch" by FDOT whereby a "transformative Signature Bridge project to uplift and ameliorate a long-blighted stretch of interstate" was to be replaced with a " 'plain-Jane' segmental box bridge."

In the 2013 case, a class was never certified, and the only response to the amended complaint by FDOT was a motion to abate for improper venue (seeking a transfer of the case to the Second Judicial Circuit in Leon County, Florida, based on Florida Rule of Civil Procedure 1.060(b) and the home venue privilege). Leon County is the site of FDOT's principal headquarters. FDOT's venue motion was never heard or decided in the 2013 case; instead, following discussions among counsel and the parties, Commissioner Sarnoff, Mayor Regalado, and FDOT filed a joint motion to dismiss the amended complaint, without prejudice, on the grounds that "The parties have engaged in discussions about the design and construction of a new I-395 'signature' bridge and the parties are committed to continued discussions regarding same." (Emphasis provided).

The joint motion sought the trial court's leave for the dismissal, based on the plaintiffs' plea for class representation in the amended complaint and plaintiffs' counsel's "implied fiduciary duties to the putative class." The joint motion also contained these provisions:

4. FDOT shall organize a committee ("Committee") consisting of five (5) individuals to be selected by mutual agreement of Alice N. Bravo, P.E., City of Miami Assistant City Manager Chief of Infrastructure and Gus Pego, P.E., FDOT District Secretary, District 6. The role of the Committee is to serve as an advisor to FDOT.
5. On or before December 31, 2013, the Committee shall:
(a) Evaluate and recommend to FDOT, from among various bridge concepts proposed by FDOT for the Project, the one that best fulfills the commitments made by FDOT as part of the Project Environmental Impact Statement ("EIS") and the Record of Decision ("ROD") issued by the Federal Highway Administration.
(b) Provide input to FDOT on the selection criteria for teams interested in submitting proposals for the Project.
(c) During the procurement of the Project, serve as an aesthetic advisory group to FDOT.
6. The parties agree that the cost of the entire project shall not exceed Six Hundred Million Dollars and NO/100 ($600,000,000.00).

The trial court promptly entered an order granting the joint motion for dismissal of the 2013 lawsuit, without prejudice. The form of order submitted to, and signed by, the trial court recited that the court was "informed that the parties are in agreement as to the relief requested in the Motion." That order did not, however, approve or ratify the terms of the joint motion as a settlement agreement, nor did it retain jurisdiction to enforce the undertakings in paragraphs 4 to 6 of the joint motion to dismiss (quoted above) regarding the advisory "Committee" or the $600,000,000.00 not-to-exceed cost of the bridge project.

Three and one-half years transpired, during which the aesthetic advisory committee apparently contemplated in the joint motion was formed and met to consider possible design concepts and public input. In May 2017, FDOT announced its intention to award the I-395 project to a joint venture. The following month, Mr. Sarnoff (by then a former City Commissioner) filed a motion to re-open the 2013 case, to drop former Mayor Regalado as a party plaintiff, and to obtain relief for FDOT's alleged breach of its purported 2013 settlement agreement evidenced by the joint motion and based on subsequent activities by the advisory committee.

On July 17, 2017, the trial court denied Mr. Sarnoff's motion to re-open the 2013 case, noting that it had not retained jurisdiction over the matter. Two days later, Mr. Sarnoff filed a new complaint and demand for jury trial, again seeking certification of a class of similarly-situated residents of the City of Miami. In the 2017 lawsuit, Mr. Sarnoff alleged that FDOT and the plaintiffs in the 2013 lawsuit had reached a "settlement agreement," that the trial court had approved that settlement agreement, and that FDOT had then breached it.

As it had in the 2013 lawsuit, FDOT filed a motion to dismiss the 2017 complaint for improper venue, again invoking Florida's home venue privilege. The trial court denied FDOT's motion, and this appeal followed.

Analysis

Florida's home venue privilege is based on decisional rather than statutory law. It dates back to the Supreme Court of Florida's decision in Smith v. Williams, 160 Fla. 580, 35 So.2d 844 (1948). Fla. Dep't of Children & Families v. Sun-Sentinel, Inc., 865 So.2d 1278, 1287 (Fla. 2004) ; see also Carlile v. Game & Fresh Water Fish Comm'n, 354 So.2d 362, 363-64 (Fla. 1977) ("It has long been the established common law of Florida that venue in civil actions brought against the state or one of its agencies or subdivisions, absent waiver or exception, properly lies in the county where the state, agency, or subdivision, maintains its principal headquarters.").

The State and its agencies are entitled to this privilege unless: "(1) it is inapplicable, based upon an exception recognized by the Florida Supreme Court or by statute; or (2) it has been waived." Castle Beach Club Condo., Inc. v. Citizens Prop. Ins. Corp., 96 So.3d 964, 966 (Fla. 3d DCA 2012) (citing Fla. Dep't of Children & Families, 865 So.2d at 1287-89 ). The Supreme Court of Florida has recognized four exceptions to the home venue privilege: (1) where the Florida Legislature waives the privilege by statute; (2) the sword-wielder exception; (3) where a governmental defendant is sued as a joint tortfeasor; and (4) where a party petitions the court for an order to gain access to public records. Fla. Dep't of Children & Families, 865 So.2d at 1287-89. In this case, Mr. Sarnoff claims FDOT may not invoke the home venue privilege because of a statutory waiver.

Mr. Sarnoff's arguments are: (1) the 2013 joint motion to dismiss, the order on that motion, and an "I-395 Steering Committee Charter" collectively constituted a written settlement agreement; (2) communications between FDOT and others corroborate the existence of such an agreement; (3) FDOT partly performed under the purported settlement agreement; and (4) section 337.19(1), Florida Statutes (2017), permits local lawsuits against FDOT for breach of contract when the claim arises from "breach of an express provision or an implied covenant of a written agreement or written directive issued by the department pursuant to the written agreement." These arguments fail. We address them as two basic inquiries. First, did the parties enter into an enforceable written settlement agreement in 2013 as part of the dismissal of the earlier lawsuit? Second, are the documents relied upon by Mr. Sarnoff public contracts subject to chapter 337, including that chapter's statutory waiver of FDOT's home venue privilege in section 337.19(1) ?

"Settlement Agreement"

"Settlement agreements are to be interpreted by and are governed by the same principles of law interpreting and governing contracts." Gaines v. Nortrust Realty Mgmt., Inc., 422 So.2d 1037, 1039 (Fla. 3d DCA 1982). A settlement agreement must be sufficiently specific as to be capable of implementation and will not be enforceable if "too vague or ambiguous in its meaning or effect." Id. The parties "must reach mutual agreement on every essential element of the proposed settlement." Id. at 1040.

The joint motion for dismissal of the 2013 lawsuit asked the trial court to approve the dismissal of the 2013 lawsuit (still in its nascent stages) without prejudice, not to approve a settlement agreement. The use of the term "without prejudice" signifies that the lawsuit might be re-filed at a later time. The trial court was not asked to confirm or ratify any terms, nor did it retain jurisdiction in the order of dismissal to enforce any agreement.

Paragraphs 4 through 6 of the joint motion are quoted verbatim earlier in this opinion. Paragraph 4 provides for the organization by FDOT of a committee of five non-party individuals to be selected by three other designated individuals (one of whom was a regional FDOT secretary) "to serve as an advisor to FDOT." An agreement to receive advice, it hardly needs to be said, is not an obligation to accept, or perform in accordance with, that advice.

Paragraph 5 of the joint motion required the five-person advisory committee: to evaluate and recommend to FDOT, by December 31, 2013, the bridge concept that best fulfills the commitments made by FDOT as part of its environmental impact statement and a record of decision by the Federal Highway Administration; to "provide input" to FDOT on selection criteria for teams submitting bridge proposals; and to "serve as an aesthetic advisory group to FDOT." If the committee made such an evaluation and recommendation, there is no imposition of an obligation on the part of FDOT to accept or follow it. In approving dismissal of the 2013 lawsuit, the trial court did not agree to take jurisdiction over the to-be-formed committee, much less to enforce the committee's role of providing advice.

Finally, the agreement by the parties that the cost of the project would not exceed $600,000,000.00 is not based on any budget or other document identifying "the project" in sufficient detail to be enforceable. Paragraph 3 of the joint motion made it clear that the parties were still engaged in discussions regarding "the design and construction of a new I-395 'signature'

bridge," and the actual procurement process was not yet underway.

Turning to the other writings contended to be part of a "settlement agreement," only two warrant discussion. The first is an unsigned, undated "I-395 Steering Committee Charter." This five-paragraph, two-page document designates the five members of the I-395 Steering Committee and generally describes the Committee's mission as evaluating bridge concepts proposed by FDOT, emphasizing three project goals: maximizing aesthetic value; elevating the highway to the maximum extent possible to improve natural lighting to the areas beneath the highway; and reconnecting streets within the Overtown Community. The I-395 Steering Committee was to "help establish selection criteria for the teams pursuing a Design-Build-Finance (DBF) project to implement the I-395 Project." During the procurement and bid process, the Committee was to serve as the "Aesthetic Advisory Group" to report (with another group, the Technical Advisory Group) to the Selection Committee.

The second document warranting discussion is a letter from the District Secretary for FDOT for the region including Miami-Dade County, Jim Wolfe, P.E. In May 2017, Mr. Wolfe wrote the Mayor and a Commissioner of Miami-Dade County a letter regarding the status of the "I-395 Reconstruction Project." Excerpts from the letter are relied upon by Mr. Sarnoff as corroboration that an enforceable settlement agreement emanated from the 2013 lawsuit and dismissal:

The Department has committed to providing the citizens of Miami a project that will be transformative to the community.
* * *
As previously agreed between the Department and the City of Miami, the process of selecting a bridge concept and the vendor included the input of an aesthetic advisory committee selected by joint agreement of a representative of the City and a representative of the Department, to provide an additional mechanism for local input into the project process.
* * *
In addition to the extensive public outreach conducted by the Department, the Department actually afforded the advisory committee greater participation in the procurement process than was strictly required under the terms of its agreement with the City . The Department's procurement process fully complied with both the letter and the spirit of its agreement with the City and with applicable State law.

(Emphasis provided).

FDOT's agreement to appoint a committee and receive advice regarding aesthetics is not (without more) an enforceable settlement agreement, and in approving dismissal of the 2013 lawsuit, the trial court never suggested that the terms in the joint motion were a settlement agreement. Collectively, the documents relied upon by Mr. Sarnoff demonstrate that FDOT agreed to receive input, not from Mr. Sarnoff, but from non-parties residing and working in the County in which the project-in-process was to be located. They do not establish a meeting of the minds of the parties with specific, enforceable terms, as required under Gaines and the cases cited in that opinion.

Statutory Waiver; Section 337.19

Section 337.19, captioned "Suits by and against department; limitation of actions; forum," unquestionably establishes an exception to Florida's home venue privilege. Contract claims by or against FDOT and based on a "written agreement or written directive issued by the department" (subparagraph (1) ) may be filed and prosecuted "in the county or counties where the cause of action accrued, or in the county of the department's district headquarters responsible for the work, or in Leon County" (subparagraph (3) ). Mr. Sarnoff contends that the purported settlement agreement could be filed in Miami-Dade County based on the location of the district headquarters and the County where the claim for breach of the agreement arose.

If we agreed with Mr. Sarnoff's contention that the joint motion to dismiss and other documents constituted a written, enforceable settlement agreement (which we do not), we would nonetheless disagree that the agreement could be enforced in Miami-Dade County. The statutory waiver of FDOT's home venue privilege must be considered in light of the kinds of agreements and directives that are subject to the waiver.

Chapter 337 addresses the administration of public contracts for State transportation projects. The provisions of the chapter include requirements for competitive bidding, the purchase and sale of property, the acquisition of necessary aggregate materials for construction, the development and retention of vendors and professional services providers, and other aspects of building and maintaining transportation infrastructure.

Importantly, section 337.19(1) addresses actions by and against FDOT and a "contractor:" "In any such suit, the department and the contractor shall have all of the same rights and obligations as a private person under a like contract except that no liability may be based on an oral modification of either the written contract or written directive." In context, it is apparent that the statutory waiver applies to actions by and against FDOT under signed, authorized contracts with a "contractor" for construction of a transportation-related project (or the delivery of goods or services related to that construction).

On the record before us, Mr. Sarnoff was not and is not such a "contractor" with respect to the I-395 highway project. The only "settlements" addressed in Chapter 337 are addressed in section 337.221, "Claims settlement process." Those settlements pertain to "contractual claims between the department and providers of goods and services" and the "recovery of additional costs resulting from substandard goods and services provided to the department." A transportation contractor may assert a claim against FDOT, or FDOT may assert a claim against such a contractor, arising under an authorized public construction contract. A purported settlement agreement whereby FDOT agrees to consider input from community leaders and infrastructure planning professionals (on an unpaid basis) as procurement and authorization of actual design and construction contracts are underway does not resemble a complete, written contract procured and signed under the strictures of the public contracts statutes applicable to FDOT.

The limited waiver available to contractors under section 337.19 is inapplicable to the joint motion to dismiss the 2013 lawsuit and other documents contended by Mr. Sarnoff to comprise a contract with FDOT.

Conclusion

There is no question that Mr. Sarnoff and his counsel were civic-minded and sought to impress upon FDOT's district office the importance of local advice and input relating to an important local transportation project. The trial court recognized that and duly noted, in the hearing on FDOT's motion, the language of section 337.19 allowing a contract claim against FDOT to be "brought in the county where the cause of action accrued."

We are constrained, however, to carefully review the details of the purported "contract" or "settlement agreement," as well as the limitations on the statutory waiver in section 337.19. After doing so, we reverse the order denying FDOT's motion to dismiss for improper venue and remand the case to the trial court to grant the motion.

Reversed and remanded.

      We refer to both appellants collectively as "FDOT."

      § 337.19(1), Fla. Stat. (2017).

      We have jurisdiction to review the order under Florida Rule of Appellate Procedure 9.130(a)(3)(A).

      As already noted, the trial court in the 2013 lawsuit denied Mr. Sarnoff's motion to re-open the case for further proceedings in 2017.

      Mr. Wolfe's letter noted that the aesthetic advisory committee held public meetings on nine dates from February 2014 through September 2015.

      Gaines is still good law relating to settlement agreements and the enforceability of such agreements, and is still regularly cited in District Court and federal opinions throughout Florida. See, e.g., Miller v. U.S. Sec. Assocs., Inc., 2017 WL 3337066, at *2 (S.D. Fla. Aug. 4, 2017).

      In the joint motion to dismiss the 2013 lawsuit, for example, counsel for Mr. Sarnoff represented that his firm was representing the plaintiffs without charge.


text:
    Gary HARRISON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-0410
    District Court of Appeal of Florida, First District.
    March 6, 2018
    Gary Harrison, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Wolf, Osterhaus, and Winsor, JJ., concur.